Pretty in Plastic, Inc. v. Bunn concerns a copyright infringement claim by an art installation fabricator against the Museum of Ice Cream pop-up museum featuring ice cream-themed exhibits and enveloping experiences. In 2016, defendants 1AND8, Inc. and Mary Ann Bunn (together, the “Museum of Ice Cream”) of the Museum of Ice Cream, a pop-up museum, contacted plaintiff Pretty in Plastic, Inc. (“Pretty in Plastic”), an art installation fabricator, about creating a room installation for the Los Angeles Museum of Ice Cream's Spring 2017 exhibition. Pretty in Plastic sent the Museum of Ice Cream concepts and designs for four rooms, including a “Rainbow Sherbet Room,” which featured a solid white unicorn with a long gold horn. However, the parties never reached an agreement for use of Pretty in Plastic’s designs.

In 2017, the Museum of Ice Cream opened an exhibit in San Francisco which featured a “Rainbow Room” containing a white unicorn with a long gold horn. Upon discovering the exhibit, Pretty in Plastic sued the Museum of Ice Cream for copyright infringement. Pretty in Plastic alleged that “[t]he selection and arrangement of a full-bodied, monochromatic, semi-gloss white unicorn with approximately eight visible spirals on a long, shiny gold horn” as depicted in its design proposal was an original depiction of a unicorn.

The district court disagreed. It determined Pretty in Plastic’s unicorn was a standard depiction of a unicorn and therefore did not display the “quantum of originality needed to merit copyright protection.” Granting Pretty in Plastic a copyright over the unicorn would “effectively provide [it] a monopoly over depictions of white unicorns.” The district court further concluded that “even if . . . the combination of the unprotectable elements renders the unicorn protectable,” the two unicorns were not sufficiently substantially similar to sustain an infringement claim.

At best, the district court considered any copyright in the plaintiff’s design to be “thin,” meaning the design would be “protect[ed] against only virtually identical copying.” It found that a casual observer would recognize both works as unicorns, but “would not mistake the two for one another.” The hooves of Pretty in Plastic’s unicorn were smaller and more realistic, while the hooves of the Museum of Ice Cream’s unicorn were more like “high-heeled or platform shoes.” Despite similarities between the horns, such as being gold and ringed, there were also differences, including the rings’ tightness, as well as length and angle. Accordingly, the district court dismissed Pretty in Plastic’s copyright infringement claim.

On appeal, the Ninth Circuit affirmed the district court’s grant of the Museum of Ice Cream’s motion to dismiss. Because Pretty in Plastic’s copyright protection was at best thin and significant dissimilarities existed between the “Rainbow Sherbet Room” and “Rainbow Room,” the appellate court held that the district court did not err in concluding there was no infringement as a matter of law.

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