Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039 (8th Cir. 2003). · Go Syfert
Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039 (8th Cir. 2003). Cases Citing This Book View Copy Cite
61 citation events (61 in the last 25 years) across 16 distinct courts.
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Facility Guidelines Institute, Inc. v. Upcodes, Inc.
E.D. Mo. · 2023 · quote attribution · 1 verbatim quote · confidence high
the public interest is served in protecting the holders of valid copyrights from infringing activities.
examined Cited as authority (verbatim quote) Taylor Corporation v. Four Seasons Greetings, LLC (5×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
8th Cir. · 2005 · quote attribution · 1 verbatim quote · confidence high
the district court's findings of substantial similarity between all six original cards and their allegedly infringing counterparts were not clearly erroneous.
examined Cited as authority (verbatim quote) Taylor Corp. v. Four Seasons (5×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
8th Cir. · 2005 · quote attribution · 1 verbatim quote · confidence high
the district court's findings of substantial similarity between all six original cards and their allegedly infringing counterparts were not clearly erroneous.
discussed Cited as authority (rule) Income Allocation, LLC v. TruChoice Financial Group, LLC
D. Minnesota · 2023 · confidence medium
A certificate of copyright registration “made before or within five years after first publication of the work” establishes a rebuttable presumption of valid ownership of a copyright. 17 U.S.C. § 410 (c); Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003).
cited Cited as authority (rule) Edland v. Basin Electric Power Cooperative
D.S.D. · 2021 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003) (citing 17 U.S.C. § 410 (c)).
discussed Cited as authority (rule) MPAY Inc. v. Erie Custom Computer
8th Cir. · 2020 · confidence medium
With respect to MPAY’s first argument, the law in our circuit used to be that “[i]n copyright-infringement cases, . . . a showing of a prima facie case raises a presumption of irreparable harm.” Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041-42 (8th Cir. 2003).
discussed Cited as authority (rule) Infogroup, Inc. v. DatabaseUSA.com LLC
8th Cir. · 2020 · confidence medium
Certificates of Registration are “entitled to a rebuttable presumption of the validity of [the] copyright[].” Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003), citing 17 U.S.C. § 410 (c) (2002).
discussed Cited as authority (rule) Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc.
W.D. Mo. · 2019 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003) (citing Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939 , 941 (8th Cir. 1992) (citing Feist, 499 U.S. at 361 (“The establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”))). 1.
cited Cited as authority (rule) Vickerman Company v. Kushner
D. Minnesota · 2018 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041-42 (8th Cir. 2003).
cited Cited as authority (rule) Healthmate International, LLC v. French
W.D. Mo. · 2017 · confidence medium
E.g., Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003).
discussed Cited as authority (rule) Ferman v. Jenlis, Inc.
S.D. Iowa · 2016 · confidence medium
“Further, our case law recognizes that the mere employment of seines a faire—defined as ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic’— cannot amount to infringing conduct.” Id. (citing Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003)).
cited Cited as authority (rule) Kennedy v. Gish, Sherwood & Friends, Inc.
E.D. Mo. · 2015 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir.2003).
discussed Cited as authority (rule) Batiste v. Najm
E.D. La. · 2014 · confidence medium
The Mattel court's analysis is quite different from that in Roth Greeting Cards, discussed supra and infra. . 315 F.3d 1039, 1043 (8th Cir.2003); 403 F.3d 958, 966 (8th Cir.2005). . 315 F.3d at 1043 . .
discussed Cited as authority (rule) REG Seneca, LLC v. Harden
S.D. Iowa · 2013 · confidence medium
“A court should balance these considerations when deciding whether to issue an injunction.” Mid-America Real Estate Co. v. Iowa Realty Co., Inc., 406 F.3d 969, 972 (8th Cir.2005) (citing Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041 (8th Cir.2003)).
discussed Cited as authority (rule) Southeast X-Ray, Inc. v. Spears (2×) also: Cited "see, e.g."
W.D. Ark. · 2013 · confidence medium
Although Plaintiffs cite to the Eighth Circuit’s opinion in Taylor Corporation v. Four Seasons Greetings, LLC, for the proposition that “[i]n copyright infringement cases, the general rule is that a showing of a prima facie case [of infringement] raises a presumption of irreparable harm,” 315 F.3d 1039, 1041-42 (8th Cir.2003), this “general rule” has not been good law since 2006, when the Supreme Court issued its opinion in the case of eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393 , 126 S.Ct. 1837 , 164 L.Ed.2d 641 (2006).
discussed Cited as authority (rule) ISU VETERINARY SERVICES CORP. v. Reimer
S.D. Iowa · 2011 · confidence medium
“A court should balance these considerations when deciding whether to issue an injunction.” Mid-America Real Estate Co. v. Iowa Realty Co., Inc., 406 F.3d 969, 972 (8th Cir.2005) (citing Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041 (8th Cir.2003)).
cited Cited as authority (rule) Forest River, Inc. v. Heartland Recreational Vehicles, LLC
N.D. Ind. · 2010 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir.2003).
cited Cited as authority (rule) Frye v. YMCA Camp Kitaki
8th Cir. · 2010 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir.2003) (“Taylor /”) (internal marks omitted).
cited Cited as authority (rule) Arista Records LLC v. DOES 1-27
D. Me. · 2008 · confidence medium
Id. at 3-4, 6-7 (citing Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041-42 (8th Cir.2003); ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 66 (2d Cir. 1996)).
cited Cited as authority (rule) Washington v. LADUE SCHOOL DIST. BD. OF EDUC.
E.D. Mo. · 2008 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC 315 F.3d 1039, 1041 (8th Cir.2003) (citing Dataphase Sys., Inc. v. C.
discussed Cited as authority (rule) Mid-America Real Estate Company D/B/A Coldwell Banker Mid-America Group, Realtors v. Iowa Realty Company, Inc. First Realty, Ltd.
1st Cir. · 2005 · confidence medium
“A District Court’s decision to grant a preliminary injunction will not be overturned absent a clearly erroneous factual determination, an error of law, or an abuse of discretion.” Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041 (8th Cir.2003).
discussed Cited as authority (rule) Mid-America Real Est v. Iowa Realty Co.
8th Cir. · 2005 · confidence medium
"A District Court's decision to grant a preliminary injunction will not be overturned absent a clearly erroneous factual determination, an error of law, or an abuse of discretion." Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1041 (8th Cir. 2003).
discussed Cited as authority (rule) Lexmark International, Inc. v. Static Control Components, Inc. (2×)
6th Cir. · 2004 · confidence medium
Finally, there is a Circuit split regarding the stage at which to apply the seénes á. faire doctrine that parallels the split as to the merger doctrine. 4 Nimmer § 13.03[B][4], at 13-76 — 7 n. 180.1; Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 914 (7th Cir.1996) (holding the doctrine of scenes á faire is separate from the doctrine regarding the validity of a copyright); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir.2000) (recognizing the split and citing Reed-Union favorably on this question); Taylor Corp. v. Four Seasons Greetings LLC, 315 F.3d 1039, 1042-3 (8th C…
discussed Cited as authority (rule) Lexmark Intl Inc v. Static Control
6th Cir. · 2004 · confidence medium
Finally, there is a Circuit split regarding the stage at which to apply the scènes à faire doctrine that parallels the split as to the merger doctrine. 4 Nimmer§ 13.03[B][4], at 13-76 - 7 n.180.1; Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 914 (7th Cir. 1996) (holding the doctrine of scènes à faire is separate from the doctrine regarding the validity of a copyright); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir. 2000) (recognizing the split and citing Reed-Union favorably on this question); Taylor Corp. v. Four Seasons Greetings LLC, 315 F.3d 1039, 1042-3 (8th Cir…
discussed Cited as authority (rule) Rita Mulcahy v. Cheetah Learning LLC Jeff Schurrer
8th Cir. · 2004 · confidence medium
It simply concluded that PMP Exam Prep does not infringe PMI’s copyright in the PMBOK because, while the two works have “many substantive details in common,” they are not substantially similar “in substance, purpose, presentation, and functionality.” The court applied the two-part test for determining substantial similarity adopted by this court in diverse copyright infringement cases such as Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987), Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 729 (8th Cir.2002), and Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 103…
discussed Cited as authority (rule) Rita Mulchay v. Cheetah Learning LLC
8th Cir. · 2004 · confidence medium
It simply concluded that PMP Exam Prep does not infringe PMI’s copyright in the PMBOK because, while the two works have “many substantive details in common,” they are not substantially similar “in substance, purpose, presentation, and functionality.” The court applied the two-part test for determining substantial similarity adopted by this court in diverse copyright infringement cases such as Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987), Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 729 (8th Cir. 2002), and Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 10…
cited Cited as authority (rule) Easy Returns Worldwide, Inc. v. United States
E.D. Mo. · 2003 · confidence medium
Taylor Corp. v. Four Seasons Greetings, LLC 315 F.3d 1039, 1041 (8th Cir.2003)(citing Dataphase Sys., Inc. v. C.L.
discussed Cited as authority (rule) Recording Industry Ass'n of America v. Verizon Internet Services
D.D.C. · 2003 · confidence medium
Ass’n of Am. v. Novelli, 211 F.Supp.2d 23, 28 (D.D.C.2002) ("In copyright infringement cases, a copyright holder may be presumed to suffer irreparable harm as a matter of law when his right to the exclusive use of copyrighted material is invaded."); Taylor Corp. v. Four Seasons Greetings, 315 F.3d 1039, 1041-42 (8th Cir.2003) (for purposes of injunctive relief "[i]n copyright-infringement cases, the general rule is that a showing of a prima facie case raises a presumption of irreparable harm”); ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 66 (2nd Cir.1996) (same). 31 .
cited Cited "see" Heritage Homes, LLC v. Benjamin Custom Homes, LLC
D.N.D. · 2019 · signal: see · confidence high
See Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003).
examined Cited "see" The Edge in College Preparation, LLC v. Peterson's Nelnet, LLC (3×)
D. Neb. · 2019 · signal: see · confidence high
See Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1043 (8th Cir. 2003). (i) Extrinsic Similarity To begin, the extrinsic inquiry is an objective one, looking only "to the specific and external criteria of substantial similarity between the original elements (and only the original elements) of a protected work and an alleged copy." Copeland v. Bieber, 789 F.3d 484, 489 (4th Cir. 2015) (internal quotations omitted).
discussed Cited "see" Cy Wakeman, Inc. v. Nicole Price Consulting, LLC (2×)
D. Neb. · 2018 · signal: see · confidence high
See Taylor Corp. v. Four Seasons Greetings, LLC , 315 F.3d 1039 , 1043 (8th Cir. 2003). 2 Wakeman has not shown a likelihood of success on the merits of either step of that analysis. (i) Extrinsic Similarity Extrinsically, Wakeman points to several parts of Lively Paradox that, she says, represent content taken "nearly verbatim" from her copyrighted works.
cited Cited "see" Sun Media Systems, Inc. v. KDSM, LLC
S.D. Iowa · 2008 · signal: see · confidence high
See Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir.2003).
discussed Cited "see, e.g." Positive Black Talk Inc. v. Cash Money Records Inc.
5th Cir. · 2005 · signal: see also · confidence medium
The test articulated in Creations Unlimited is similar to the Ninth Circuit's intrinsic test, which is “subjective and asks whether the ordinaiy, reasonable person would find the total concept and feel of the works to be substantially similar.” Three Boys Music Corp., 212 F.3d at 485 (internal quotation marks omitted); see also Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042-43 (8th Cir. 2003) (applying intrinsic test); Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002) ("The intrinsic test is a subjective comparison that focuses on whether the ordinary, reas…
discussed Cited "see, e.g." Positive Black Talk Inc., Doing Business as Take Fo' Records, Doing Business as Take Fo' Publishing, Plaintiff-Counter v. Cash Money Records Inc., Cash Money Records Inc. Terius Gray, Also Known as Juvenile, Defendants-Counter Claimants-Appellees, and UMG Recordings Inc., Universal Records Inc. Merged Into UMG Recordings Inc. Universal Music and Video Distribution Corp. Positive Black Talk Inc., Doing Business as Take Fo' Records, Doing Business as Take Fo' Publishing v. Cash Money Records Inc., Cash Money Records Inc. UMG Recording Inc., Universal Records, Inc. Universal Music and Video Distribution Corp. Terius Gray, Also Known as Juvenile
5th Cir. · 2004 · signal: see also · confidence medium
The test articulated in Creations Unlimited is similar to the Ninth Circuit's intrinsic test, which is "subjective and asks whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar." Three Boys Music Corp., 212 F.3d at 485 (internal quotation marks omitted); see also Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042-43 (8th Cir.2003) (applying intrinsic test); Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002) ("The intrinsic test is a subjective comparison that focuses on whether the ordinary, reasonabl…
Retrieving the full opinion text from the archive…
TAYLOR CORPORATION, Appellee,
v.
FOUR SEASONS GREETINGS, LLC, Appellant
01-3906.
Court of Appeals for the Eighth Circuit.
Jan 15, 2003.
315 F.3d 1039
Kathleen A. Rheintgen, argued, Chicago, IL (Joseph E. Cwik, Chicago, IL, on the brief), for appellant., Laura J. Hein, argued, Minneapolis, MN (Gina M. Tiefenthaler, Minneapolis, MN, on the brief), for appellee.
Riley, Arnold, Smith.
Cited by 38 opinions  |  Published
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Kathleen A. Rheintgen, argued, Chicago, IL (Joseph E. Cwik, Chicago, IL, on the brief), for appellant.

Laura J. Hein, argued, Minneapolis, MN (Gina M. Tiefenthaler, Minneapolis, MN, on the brief), for appellee.

Before RILEY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

Lead Opinion

RICHARD S. ARNOLD, Circuit Judge.

The Taylor Corporation, a manufacturer of greeting cards with original decorative designs, obtained a preliminary injunction in the District Court[1] against a competitor, Four Seasons Greetings, LLC, to prevent further alleged infringement of its copyrights in six greeting cards. Four Seasons appeals the grant of the preliminary injunction against it on the grounds that the District Court made errors of law when it determined that the doctrine of scenes a faite was inapplicable to this case, and in its application of this Court’s intrinsic test of similarity between the original cards and the infringing cards. Four Seasons also argues that the District Court made clearly erroneous factual findings of substantial similarity between each of the six original cards and the allegedly infringing cards. We affirm the District Court’s decision to grant a preliminary injunction, recognizing that, if the proof at the trial on the merits should be different, the case could go the other way on final judgment.

I.

Taylor Corporation creates and sells greeting cards with original decorative designs. It holds copyrights on many of its greeting-card designs, including the six greeting cards at issue in this case. The three artists who created the allegedly infringing Four Seasons cards, Frank Stock-mal, Aleta Brunettin, and Michael Shelton, had previously worked for Creative Card Company, a company whose assets (including card designs) were later purchased by Taylor, in early 2000. On June 25, 2001, and August 3, 2001, Taylor registered and received United States Certificates of Registration on these six cards, entitled: ‘Wreath with Verse,” “Pencil Sketch Farm,” “Colored Presents,” “Ribbon of Flags Around Globe,” “Three World of Thanks Globe Ornament,” and “Thanksgiving Cart.”

Four Seasons competes directly with Taylor for customers and sales. It contends that its cards were not copied from any of appellee’s designs, and that proper application of the doctrine of scenes a faite requires a holding that there was no copyright infringement. The District Court granted Taylor’s motion for a preliminary injunction, to take effect on the posting of a bond in the amount of $205,000, as required by Federal Rules of Civil Procedure 65(c), in an amended order of November 26, 2001. Joint Appendix 382-400.

II.

A District Court’s decision to grant a preliminary injunction will not be overturned absent a clearly erroneous factual determination, an error of law, or an abuse of discretion. Campaign fot Family Farms v. Glickman, 200 F.3d 1180, 1186 (8th Cir.2000). Whether the equitable remedy of a preliminary injunction should issue depends on four factors: (1) the probability that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant should a preliminary injunction be denied; (3) the balance between this harm and the harm that granting the injunction will cause to the other parties litigant; and (4) the public interest. This analysis requires a balancing of the four factors. The scope of review of a grant of preliminary injunction on appeal is narrow. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 112-14 (8th Cir.1981) (en banc).

In copyright-infringement cases, the general rule is that a showing of a prima facie case raises a presumption of[*1042] irreparable harm. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984). If Taylor made a prima facie showing of copyright infringement, the District Court properly presumed that Taylor would suffer irreparable harm in the form of lost sales, absent the grant of a preliminary injunction against Four Seasons. With respect to factor three, the balance of harms as between Taylor and Four Seasons, if copyright infringement is proved, this factor becomes negligible, and would favor Taylor. E.F. Johnson Co. v. Uniden Corp. of America, 623 F.Supp. 1485, 1491 (D.Minn.1985).

The fourth factor to be considered in determining whether a preliminary injunction should issue is the public interest. The public interest is served in protecting the holders of valid copyrights from infringing activity — an interest served here by the grant of a preliminary injunction against Four Seasons. Id. at 1504.

III.

The central issue in dispute is the first factor, whether Taylor would be likely to succeed in establishing copyright infringement at trial. In order to prevail on a copyright-infringement claim, Taylor must be able to prove that it owns valid copyrights in the works infringed, and that Four Seasons copied those works. Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 941 (8th Cir.1992). Since Taylor holds certificates of registration in all six cards, it has provided prima facie evidence of the validity of its copyright in the cards at issue and is entitled to a rebuttable presumption of the validity of its copyrights. 17 U.S.C. § 410(c) (2002). .

Copying may be demonstrated by direct evidence or, as here, by circumstantial evidence establishing that Four Seasons had access to the copyrighted material, and that there is substantial similarity between the Taylor cards and the Four Seasons cards. It is undisputed that Four Seasons had direct access to at least four of Taylor’s six designs, because the three artists who created the designs later created the alleged infringing designs for Four Seasons: “Happy Holidays,” “Globe with Streamers,” “Bright New World,” and “Pumpkin Wagon.” Given the competitive nature of the greeting-card business, and the fact that the two other cards, “Wreath with Verse,” and “Pencil Sketch Farm,” were available in stores, there is no dispute that Four Seasons had access to all six of Taylor’s copyrighted cards. Four Seasons, however, challenges the District Court’s interpretation of the scope of the copyrights in those cards.

Appellants argue that the District Court erred as a matter of law in finding the doctrine of scenes dfaire inapplicable to this case. Notably, the case which introduced the concept of scenes a faire into copyright jurisprudence involved a dispute between script writers and filmmakers, where the phrase was defined as “scenes which ‘must’ be done.” Schwarz v. Universal Pictures Co., 85 F.Supp. 270, 275 (S.D.Cal.1945). The doctrine has most frequently been applied in the film, television, and video contexts. “Scenes dfaire ” refers to “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Atari, Inc. v. North Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). As Nimmer points out, the doctrine “does not limit the subject matter of copyright; instead, it defines the contours of infringing conduct. Labeling certain stock elements as ‘scenes á faire’ does not imply that they are uneopyrightable; it merely states that similarity between plaintiffs[*1043] and defendant’s works that are limited to hackneyed elements cannot furnish the basis for finding substantial similarity.” Nimmer on Copyright § 13.03[B]4 at 13-75 (2002). In urging that correct application of the scenes a faire doctrine would have dictated a different result in this case, appellants contend, for example, that the two wreath cards contain similarities which, because they amount to stock elements found in all depictions of Christmas wreaths, amount to unprotectable expression. Appellant’s Brief 36-37. However, there are numerous ways of depicting Christmas wreaths involving variations of design, shape, color, dimensionality, and lettering, as well as decorative minutiae. The devil is in the details. The District Court made a reasonable finding, based on comparison of the cards, that substantial similarity existed, a finding which would not be different if the cards were analyzed under the scenes a faire doctrine. Therefore, the District Court did not err as a matter of law in its choice of analytic tools.

Following this line of argument, appellants also argue that the District Court erred as a matter of law in its application of the “intrinsic” step of a two-step test for determining substantial similarity. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir.1987). After determining whether the general idea of two works is substantially similar (the “extrinsic” portion of the test), under this approach, the court must then determine whether there is similarity of expression. Id. Appellants contend that the District Court failed to analyze, during the intrinsic step of the test, similarities found between the works at issue to determine if they were merely similarities between unprotectable elements of the works. The purpose of the intrinsic test is to ascertain if the works at issue are so dissimilar that ordinary “reasonable minds [canjnot differ as to the absence of substantial similarity in expression.” Id. In reviewing, under this subjective test, each of the six sets of cards, the District Court descriptively catalogued numerous similarities in objects depicted, design, proportions used, colors, and use of lettering. The Court did not err legally in its “total concept and feel” analysis.

Finally, appellants argue that the District Court’s factual findings of substantial similarity for each of the six cards at issue were clearly erroneous. This argument is strongest with respect to two of the cards, “Colored Presents” and “Thanksgiving Cart.” Appellant’s Brief 45-49, 56-58. However, the question of whether the cards are substantially similar, like the question of whether decorative fabrics are substantially similar, becomes whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). The District Court’s findings of substantial similarity between all six original cards and their allegedly infringing counterparts were not clearly erroneous.

We have nothing else to add to the comprehensive opinion of the District Court.

Affirmed.

1

The Hon. David S. Doty, United States District Judge for the District of Minnesota.

Concurrence

RILEY, Circuit Judge,

concurring.

I concur in the well-reasoned opinion of the Court. The scope of appellate review of a preliminary injunction decision is narrow. See Dataphase Sys., 640 F.2d at 114 n. 8; Frejlach v. Butler, 573 F.2d 1026, 1027 (8th Cir.1978). Under the appropriate standard of review, the district court’s findings of substantial similarity are not clearly erroneous. The majority opinion recognizes “if the proof at the trial on the merits should be different, the case could go the other way on final judgment.” Because I believe the final fact finder could[*1044] reach a different result on the proof already presented at the preliminary injunction hearing, I separately concur.

For example, the district court found the Taylor “Pencil Sketch Farm” card copyright was probably infringed by the Four Seasons card depicting a winter country scene. Each card shows a rural winter scene with snow, trees and a well in the right foreground. The Taylor card portrays a farmyard with a barn, silo, shed, wood pile and fencing separated from a farmhouse. The Four Seasons card does not represent a farmyard, but has a house, of distinctively different architectural design, sitting near a lake, without any barn, silo, shed, wood pile or fencing. The Taylor card has two male cardinals in the foreground by the well. The Four Seasons card has no wildlife and has a tree in the left foreground of the card partially blocking the view of the house.

As another example, the district court found the Taylor “Thanksgiving Cart” card copyright was probably infringed by the Four Seasons “Pumpkin Wagon” card. The Taylor Thanksgiving card exhibits a three-wheel push cart full of squash, gourds and grapes, with pumpkins, apples and other produce on the ground beside the cart. The Four Seasons card pictures a four-wheel pull wagon full of pumpkins with baskets of apples and grapes on the ground nearby and apparently no gourds, squash or other produce.

A fresh look at the evidence already presented could result in a final judgment going the other way. Therefore, I separately concur.