The creator of a LEGO brick Second Holy Temple product is accusing another LEGO creator of copyright infringement for their interpretation of the same temple. Scott Hervey and Eric Caligiuri discuss this case on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here or read Eric’s article about this case here.

Scott:
I’m Scott Hervey from Weintraub Tobin. My colleague Eric Caligiuri wrote an interesting article for The Briefing about a recent copyright ruling involving competing LEGO sets. And we’re not talking about just any old LEGO set, but a LEGO Brick interpretation of the Second Holy Temple. We are going to talk about this case, the case of JBrick versus Chazak Kinder, Inc, on this installment of The Briefing by Weintraub Tobin.

Eric, welcome back to the podcast.

Eric:
Thanks, Scott. Good to be here.

Scott:
Great. Can you give us a rundown of the case?

Eric:
Yeah, sure. Of course. The founders of Plaintiff JBrick created a LEGO brick Second Holy Temple product that was based on independent research and at least three years of studying of historical teachings. Plaintiff also consulted with various rabbis as part of the design process. According to the court, the Second Holy Temple product is a tangible, sculptural interpretation of what the Second Holy Temple may have looked like in real life, based on the written words and interpretations of Hebrew scholars and philosophers.

Scott:
And JBrick even went so far as to obtain copyright registrations for its Second Holy Temple product, along with the copyright registrations for the product’s photographs, right?

Eric:
Yes, that’s correct. And now the plaintiff, JBrick, alleged that the defendant’s product was almost an exact replica of its own Second Holy Temple product, containing all the unique features that set JBrick’s product apart from its competitors. Accordingly, JBrick filed a complaint in May of 2021, citing claims for copyright infringement and unfair competition against these defendants. The defendants responded by claiming or by filing counterclaims for non-infringement of copyright, copyright invalidity, torture’s interference with prospective economic advantage, and false advertising.

Scott:
And let’s forward to the recent court ruling. And in that ruling, the court addressed the plaintiff’s motion for summary judgment on the defendant’s counterclaim for copyright invalidity. So, under the Copyright Act, a copyright registration creates a rebuttal presumption that the copyright is valid. This presumption of validity may be rebutted where other evidence casts doubt on that question. So, given what we have here, given that JBrick has copyright registrations, the burden it shifted to the defendant to come forward with evidence that the works in question were copied from the public domain.

Eric:
Yes, that’s exactly right. So, the defendants argued that because the information concerning the Second Holy Temple is in the public domain, the plaintiff’s copyrighted works are not original. As a result, the defendants contended that the plaintiff’s second Holy Temple product can be copied and used in derivative works. The defendants further argued that a historically accurate replication does not constitute a new and original work.

Scott:
So I can see that Eric being a fairly compelling argument. How did J Brick respond to this?

Eric:
The plaintiff responded that there’s no evidence to support the defendant’s depiction of the Second Holy Temple in the public domain, that there’s no evidence that plaintiff’s depiction is a historically accurate replication because the Second Holy Temple was destroyed almost 2000 years ago and there are no images from before when the building was destroyed. In order to create the Second Holy Temple product, the plaintiff had to read numerous textual descriptions and translated words into a 3D sculpture, further supporting its claim. Originality.

Scott:
So, to qualify for copyright protection, a work must be original to the author. And originality means only that the work was independently created by the author, as opposed to being copied from some other works, and that this work possesses at least some minimal degree of creativity. Now, a new work that incorporates public domain material can itself enjoy copyright protection as long as the author-added content meets the threshold of originality. Eric, how did the court address J Brick’s contention that its work was not in the public domain?

Eric:
Well, the court found that defendants did not show that the work had been copied from the public domain. Court noted that the defendants identified only four written texts that would support its public domain argument. A copyright is invalid only if the subject work shows no originality. That is, the copyrighted work is in no way distinguishable from something that had already been in the public domain. The court found that no reasonable jury could disagree that the plaintiff’s second Holy Temple product is thus sufficiently creative to warrant copyright protection.

Scott:
And as a result of that, the court basically rejected the defendant’s copyright invalidity counterclaim, right?

Eric:
Yes, that’s correct.

Scott:
So I think this case is a great reminder of the interplay between public domain works and works that can be protected by copyright even if they incorporate public domain material.

Eric:
Absolutely. Just because a new work contains something that’s in the public domain or even based on something that’s in the public domain does not necessarily invalidate that portion of the work. And in fact, it can reflect the author’s own originality.

Scott:
That’s great. Thanks, Eric, for bringing this case to our attention.

Eric:
Yes, of course.

Scott:
Thank you for listening to this episode of the Briefing. We hope you enjoyed this episode. If you did, please remember to subscribe. Leave us a review and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.