In 1989 or 1990, plaintiff Thomas Kerr drew New York Hairline, a pen and ink drawing of a man with a Mohawk hairstyle shaped like the Manhattan skyline and a goatee shaped like the Statue of Liberty. The man faced the viewer at a three-quarter angle, wore a t-shirt and leather jacket, and was juxtaposed against a blank background. Kerr then distributed postcards of the image, sending some to defendant The New Yorker Magazine (“The New Yorker”) and selling them in stores. Kerr also claimed to have given a copy to a mutual friend of defendant illustrator Anita Kunz (together with The New Yorker, “The New Yorker defendants”) and to have worn the drawing on a t-shirt when meeting Kunz at her 1994 exhibition.

In 1995, Kunz published a drawing titled Manhattan Mohawk on the cover of The New Yorker. The colored drawing depicted the profile of a clean-shaven man with a Mohawk hairstyle shaped like the Manhattan skyline juxtaposed against a starry night sky. The man wore four earrings and a chain running from his nose to his earlobe, but no clothing.

Kerr brought Copyright and Lanham Act (trademark) claims against Kunz and The New Yorker for allegedly copying New York Hairline in Manhattan Mohawk. Kerr argued that Kunz had access to his drawing through the postcards, and the district court found that the alleged events leading up to the infringement were sufficient to find access. The district court acknowledged that the two images were similar, but ruled that the similarities did not rise to the threshold needed to show substantial similarity of protected expression.  They granted summary judgment to The New Yorker defendants.

The district court applied the ordinary observer test, which asks whether an average lay observer would overlook any dissimilarities between the protectable elements of the works and conclude that one was copied from the other. Under this test, the district court found that using the New York skyline as a Mohawk-style coiffure was an unprotectable idea. Moreover, beyond the similarities, the district court found that the works exhibited numerous differences such as the angle of the figures’ profiles, the hairlines themselves, clothing, jewelry, and so on. Lastly, the district court also found that the concept and feel of the works were entirely different, explaining that Kerr’s ink drawing had a “sketchy, edgy feel,” while the “cool colors and smooth lines” of the The New Yorker defendants’ drawing evoked peacefulness and introspection.

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