James Tufenkian is the designer and copyright holder of the Floral Heriz textile design. The Floral Heriz combines elements of the Battilossi carpet and the Blau carpet, both in the public domain. In this suit, Tufenkian alleged that Bashian Brothers Inc. (together with other defendants, the “Bashian Brothers defendants”)’s design, Bromley 514, infringed on the Floral Heriz.

The district court granted summary judgment in the Bashian Brothers defendants’ favor, finding that (1) Tufenkian’s work was sufficiently original to support copyright protection, (2) the Bashian Brothers defendants actually copied the Floral Heriz, and (3) Bromley was not substantially similar to the protected expressions of Floral Heriz and therefore not infringing. In resolving the third issue, the district court compared the two designs’ “total concept and feel.” The district court removed the elements of the Floral Heriz and the Bromley that are not protected by copyright, such as prominent public domain elements, then compared the remaining elements for total concept and feel. Based on this comparison, the district court found that the Bromley’s “overall aesthetic is due to the public domain source and defendants’ own efforts,” rather than copying any of the Floral Heriz’s protected elements.

On appeal, the Second Circuit vacated the district court’s grant of summary judgment. First, the Second Circuit agreed that Tufenkian’s design was sufficiently original to warrant copyright protection. However, the appellate court found that while the district court was correct in factoring out the public domain elements from the Floral Heriz and the Bromley rug designs, the district court erred in overlooking whether material portions of the Bromley infringed on corresponding parts of the Floral Heriz. Comparing those elements, the Second Circuit found that “Bromley precisely mimics the Floral Heriz in nearly all of [Tufenkian’s artistic] choices.” In addition, the appellate court noted that while the Bromley does add new elements not present in the Floral Heriz, “this addition does not alter the fact that the rest of the Bromley field is a near-exact copy of the Floral Heriz field, and therefore infringing.” The Second Circuit then remanded on the issue of potential defenses and remedies. The district court later discontinued the case and issued a judgment.

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