The district court denied in part and granted in part defendant Zazzle, Inc.’s (“Zazzle”) motion for summary judgment in plaintiff artist Joseph Tomelleri’s infringement suit for unauthorized reproduction of his scientific illustrations of fish on merchandizing properties such as coffee mugs.

Joseph Tomelleri is an illustrator of scientifically accurate fish drawings based on specimens he collects, photographs, and draws by hand. Zazzle operates an online marketplace where users can upload images and create certain products for sale to the general public. Tomelleri claimed that sixty-two of his fish illustrations were used on Zazzle’s website and sued for copyright infringement; in response, Zazzle sought summary judgment on the issues of originality and copying.

First, Zazzle unsuccessfully argued that because Tomelleri’s illustrations were simply representations of real animals, they lacked any originality and could not be the subject of copyright protection. The district court found that there were visual differences between the actual fish species and the illustrations, including adjustments to the fishes’ spots, scales and fins, as well as outlines and other stylistic additions performed by Tomelleri. The district court found that there was a genuine issue of material fact regarding whether Tomelleri’s illustrations met the standard for originality.

Zazzle also argued there was no actionable copying because the illustrations could not be protected by copyright law. The district court thus analyzed the second step of a copying claim, whether the works were substantially similar to one another by “separat[ing] unprotected ideas in [Tomelleri]'s illustrations from protected expression and compar[ing] the remaining protected expression to the allegedly infringing images.” The allegedly infringing works fell into three categories: designs using silhouettes of the fish; designs using line art; and detailed, colorized fish images. The district court held that neither of the first two categories (the outlines and silhouettes of the fish) on their own were protectable by copyright as they represented the specimens’ exact proportions and are “fact[s] and therefore cannot be original.” After these unprotected silhouettes and outlines are removed from Tomelleri’s images, “there is nothing left to compare.” Thus, the district court granted Zazzle summary judgment on the first two categories. However, comparing the third category of the color illustrations with Tomelleri’s images is a more complex analysis. The district court found that whether aspects of Tomelleri’s images are sufficiently original and thus protectable was a question for trial. The district court, therefore, denied in part Zazzle’s motion for summary judgment. The parties then entered into a stipulation finding judgment in favor of Zazzle on all claims and dismissing the case.