Full opinion text
DECISION AND AMENDED ORDER VICTOR MARRERO, District Judge. TABLE OF CONTENTS PAGE I. BACKGROUND............................................................47 A. CREATION OF THE STELLA JEWELRY LINE.........................48 B. RHI’S ACQUISITION OF MSI ..........................................49 C. RICHEMONT’S POSSIBLE ACQUISITION OF RFMAS...................49 D. CREATION OF THE GATE B9 JEWELRY LINE.........................49 E. RFMAS’S SUPPLEMENTARY REGISTRATION .........................50 II. DISCUSSION..............................................................50 A. LEGAL STANDARD...................................................50 B. SPOLIATION..........................................................51 C. RFMAS’S OWNERSHIP OF A VALID COPYRIGHT......................51 1. Originality..........................................................51 2. Presumption of Validity of the Copyright and Facts Stated in the Certificate........................................................52 3. Registration of a Jewelry Collection In a Single Application...............58 4. First Publication in Italy.............................................60 D. UNAUTHORIZED COPYING OF THE STELLA PIECES.................61 1. Access.............................................................61 2. Substantial Similarity................................................63 3. Liability of the Richemont Defendants For Copyright Infringement......66 a. Direct Infringement by the Richemont Defendants...................66 b. Indirect Infringement by the Richemont Defendants.................69 i. Vicarious Infringement by the Richemont Defendants ............71 ii. Contributory Infringement by the Richemont Defendants.........72 E. TRADE DRESS INFRINGEMENT......................................74 1. Legal Standard .....................................................74 2. Articulation of Trade Dress...........................................76 3. Functionality .......................................................80 4. Secondary Meaning..................................................81 5. Likelihood of Confusion..............................................82 6. Liability of the Richemont Defendants For Trade Dress Infringement......83 a. Direct Infringement by the Richemont Defendants...................83 b. Contributory Infringement by the Richemont Defendants.............84 F. UNFAIR COMPETITION...............................................85 G. MISAPPROPRIATION OF TRADE SECRETS............................86 H. BREACH OF CONTRACT..............................................87 I. UNJUST ENRICHMENT...............................................89 III. ORDER...................................................................89 Plaintiff R.F.M.A.S., Inc. (“RFMAS”) brought this action against defendants Mimi So, Mimi So International, Inc., Richemont SA, Compagnie Financiére Richemont SA, Richemont North America, Richemont Holdings I, and Richemont International, Ltd. (collectively, “Defendants”), alleging, among other things, that Defendants infringed RFMAS’s copyright in nine pieces of its “Stella” jewelry line (the “Stella Pieces”) and infringed the trade dress of the “look” of the Stella collection. On August 11, 2008, RFMAS filed a motion for summary judgment against Mimi So (“So”) and Mimi So International, Inc. (“MSI”) (collectively, the “So Defendants”), alleging that certain pieces in the So Defendants’ “Gate B9” jewelry line directly infringe RFMAS’s copyright in the Stella Pieces. In addition, RFMAS’s motion asks the Court to rule as a matter of law that RFMAS’s copyright in the Stella Pieces is valid, and that the So Defendants accessed the jewelry. On the same date, RFMAS filed a separate motion for summary judgment against Richemont SA, Compagnie Financiére Richemont SA (“Compagnie Financiére”), Richemont North America (“Richemont NA”), Richemont Holdings I (“RHI”), and Richemont International, Ltd. (“Richemont Int’l”) (collectively, the “Richemont Defendants”), alleging that the Richemont Defendants contributorily and vicariously infringed RFMAS’s copyright in the design of the Stella Pieces, and again asks the Court to rule as a matter of law that its copyright in the Stella Pieces is valid, and that the Richemont Defendants accessed the jewelry. Both of RFMAS’s motions discuss at length the alleged spoliation of evidence committed by Defendants. RFMAS asks the Court to grant summary judgment in RFMAS’s favor or to strike Defendants’ answers to the complaint as a sanction for the alleged spoliation. Also on August 11, 2008, the So Defendants and the Richemont Defendants each filed a motion for summary judgment against RFMAS. The So Defendants assert that: (1) RFMAS’s copyright registration is not valid and that RFMAS is not entitled to any presumption of validity based on the registration; (2) RFMAS’s copyright infringement claim fails for lack of substantial similarity; and (3) as a matter of law, RFMAS’s trade dress and unfair competition claims must fail. The Richemont Defendants ask the Court to rule that: (1) they did not directly or indirectly infringe the copyright in the Stella Pieces; and (2) they are not liable for trade dress infringement, misappropriation of trade secret information, breach of contract, or unjust enrichment. By Order dated March 30, 2009 (the “March 30 Order”) the Court denied RFMAS’s motions, granted in part and denied in part the So Defendants’ motion, and granted in part and denied in part the Richemont Defendants’ motion. The Court now sets forth its findings, reasoning, and conclusions in support of the March 30 Order. I. BACKGROUND While very few facts are undisputed by the parties in this action, the Court now presents a brief summary of the general history of this case, and will present further details where relevant in its analysis of the issues. A. CREATION OF THE STELLA JEWELRYLINE Amedeo Scognamiglio (“Scognamiglio”) and Roberto Faraone Mennella (“Mennella”) are the founders, principals, and sole shareholders of RFMAS, a company that designs, markets, and sells jewelry. Seognamiglio and Mennella allege that they designed, created, and first published a collection of jewelry in Italy in 2001, which included several pieces they refer to as the “Stella” collection. Defendants, however, contend that the Stella collection may have been created and first published in the United States in 2002. On April 28, 2004, RFMAS filed a copyright application (the “Application”) with the United States Copyright Office. In the Application, RFMAS provided the following information: Section 1: Under the heading “Title of This Work,” the Application provides “COLLECTIONS I,” and under “Nature of This Work,” the Application provides “JEWELRY DESIGNS.” Section 2(a): Under the heading “Name of Author,” the Application provides “R.F.M.A.S., INC. D/B/A FARAONE MANNELLA.” Under the question “Was this contribution to the work a ‘work made for hire’?” the box marked “Yes” is checked. Under “Author’s Nationality or Domicile,” the Application provides that the author is a citizen of “USA.” Section 2(b) is not completed. Section 3(a): Under the heading “Year in Which Creation of This Work Was Completed,” the Application provides “2002.” Section 3(b): Under the heading “Date and Nation of First Publication of This Particular Work,” the Application provides “MAY 1, 2002.” The Application does not provide the nation of first publication. Attached to the Application, as the deposit for the registration, are fifty-four photographs of various items of jewelry, including necklaces, earrings, bracelets, and rings. The Copyright Office assigned RFMAS Copyright Registration No. VA-1-260-162 (the “Registration”) on April 28, 2004. (See Declaration of Christopher B. Prescott, dated August 11, 2008 (“Prescott Aug. Deck”), Ex. 5.) B. RHI’S ACQUISITION OF MSI On or about December 31, 2003, RHI acquired a 40% interest in MSI’s stock in exchange for $6 million. As part of the acquisition, RHI had the power to designate two of the initial directors of MSI’s five-person board. Edwin McQuigg (“McQuigg”), a Richemont executive, and Christopher Colfer (“Colfer”), Director of Richemont Int’l, were chosen to fill these positions. Colfer was later replaced on MSI’s board by Daniel Mawicke (“Mawicke”), President and Chief Executive Officer of Richemont NA. The parties dispute the level of oversight and input provided by RHI into MSI’s day-to-day business. RFMAS argues that RHI exercised control over MSI’s day-to-day operations, including supervision of jewelry designs. The Richemont Defendants, however, argue that RHI “had no input into how MSI was run on a day-to-day basis. Rather, this was merely a financial investment made for the purpose of providing capital to an up-and-coming jewelry company.” (Richemont Defendants’ Memorandum of Law in Support of Summary Judgment, dated August 11, 2008 (“Richemont Mem.”), at 5.) Richemont NA extended MSI $4.5 million through a series of loans in 2005 and 2006. RFMAS argues that these loans gave the Richemont Defendants additional control over MSI. The partnership between RHI and MSI terminated in 2007, and no Richemont company currently holds any investment in MSI. C. RICHEMONT’S POSSIBLE ACQUISITION OF RFMAS In June 2004, McQuigg met with RFMAS’s principals, Mennella and Scognamiglio, at RMFAS’s New York showroom to discuss Richemont’s possible investment in RFMAS. Though the parties dispute whether the Stella Pieces at issue in this litigation were in the showroom, McQuigg, concedes that he was shown “press clippings and jewelry.” (Declaration of Edwin McQuigg, dated July 29, 2008 (“McQuigg Deck”) ¶ 6.) McQuigg later introduced RFMAS’s principals to So and her husband. As part of Richemont’s investigation into whether RFMAS was a viable acquisition, McQuigg brought Colfer, who had the authority to approve investments, to RFMAS’s showroom to meet its principals. In October 2004, Colfer and Scognamiglio discussed and entered into a non-disclosure agreement. RFMAS worked with Bob Angus (“Angus”), an intern from Columbia Business School who worked with McQuigg, to prepare a thorough business plan and financials for Richemont’s evaluation. While the parties dispute the information provided to Angus, the parties agree that, at minimum, RFMAS provided Angus with financial data and projections for growth. After receiving the business plan from Angus, Colfer informed McQuigg that RFMAS was too small for any of the various Richemont companies to invest in. Colfer and McQuigg informed RFMAS of its decision to not invest in RFMAS in early December 2004, and indicated that they might reconsider possible investment if RFMAS grew. RFMAS contends that talks about a possible investment continued over two years during which its principals met with Richemont executives over twenty times. D.CREATION OF THE GATE B9 JEWELRY LINE In 2006, MSI made available for sale to the public its “Gate B9” line of jewelry. This Gate B9 collection includes necklaces and earrings that RFMAS claims infringe upon the copyright and trade dress of selected Stella necklaces and earrings. A central dispute in this case involves the creation of the Gate B9 jewelry line. The So Defendants claim that So created the Gate B9 designs in September of 2005 while in an airport in Europe (giving rise to the name of the product line), and that she did not copy her designs from RFMAS’s Stella designs but, rather, independently created her own designs. RFMAS, however, argues that Defendants accessed the Stella designs when So and McQuigg visited RFMAS’s showroom in 2004, and that the similarities between the Stella Pieces and the Gate B9 pieces are so substantial as to warrant a finding of copyright infringement as a matter of law, and are likely to confuse members of the public such that they would mistakenly attribute the Gate B9 pieces to RFMAS. E. RFMAS’S SUPPLEMENTARY REGISTRATION Scognamiglio was deposed in connection with this case in January of 2008, and during this deposition, he was presented with a copy of the Registration. He was again deposed in February of 2008. Mennella was also deposed during this time period. Fact discovery closed on March 14, 2008. On June 26, 2008, RFMAS filed a supplementary registration with the Copyright Office, purporting to correct seven misstatements contained in the Registration, which are discussed in further detail below. This supplementary registration was assigned Copyright Registration No. VA 1-429-069 (the “Supplementary Registration”). {See RFMAS Ex. 63.) II. DISCUSSION A. LEGAL STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the evidence “show[s] that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. at 248, 106 S.Ct. 2505. A factual dispute is genuine when “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. The role of a court in ruling on such a motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986). The moving party bears the burden of proving that no genuine issue of material fact exists, or that because of the paucity of evidence presented by the non-movant, no rational jury could find in favor of the non-moving party. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” {quoting Fed. R.Civ.P. 56(c))). When deciding cross-motions for summary judgment, the standard to be applied “is the same as that for individual summary judgment motions and a court must consider each motion independent of the other.” Schultz v. Stoner, 308 F.Supp.2d 289, 298 (S.D.N.Y.2004) (internal quotation marks and citation omitted). B. SPOLIATION As discussed in the March 30 Order, it is inappropriate at this time for the Court to consider the spoliation issues RFMAS raises in its motions for summary judgment. These pre-trial discovery matters were referred to Magistrate Judge Michael Dolinger, who has not made a finding of spoliation. Therefore, the Court will not impose the sanctions for the alleged spoliation that RFMAS requests in its motions, nor rely upon any inferences or presumptions stemming from allegations of spoliation. C. RFMAS’S OWNERSHIP OF A VALID COPYRIGHT To succeed on the merits of its copyright infringement claim, RFMAS must show: “(i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003); see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Under 17 U.S.C. § 411(a), “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” Accordingly, barring some applicable exception, the absence of a valid copyright registration divests the Court of subject matter jurisdiction over an action for copyright infringement. See Morris v. Business Concepts, Inc., 259 F.3d 65, 68 (2d Cir.2001); Eyal R.D. Corp. v. Jewelex New York, Ltd., 576 F.Supp.2d 626, 633 (S.D.N.Y. 2008). Thus, if the Registration is not valid, the Court must dismiss RFMAS’s copyright claims for want of jurisdiction. RFMAS argues that, as a matter of law, its copyright is valid because (1) the registered work has the requisite originality; (2) the Registration constitutes prima facie evidence of the copyright’s presumptive validity, which the So Defendants do not sufficiently rebut; and (3) in the alternative, RFMAS’s first publication of the Stella designs in Italy guarantees protection under U.S. copyright law pursuant to the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”), to which both Italy and the United States are signatories. The So Defendants counter that (1) RFMAS cannot avail itself of the statutory presumption of the Registration’s validity; (2) the Registration is invalid because a group of unrelated items may not be registered in a single registration; and (3) absent evidence of first publication in Italy, the Court does not have jurisdiction to hear RFMAS’s copyright claims. 1. Originality “To qualify for copyright protection, a work must be original to the author.” Feist, 499 U.S. at 345, 111 S.Ct. 1282. The requisite level of originality is extremely low—“even a slight amount will suffice.” Id. Even if the elements used in the work are not protectible standing alone, protection extends to the selection and arrangement of those unprotected elements in the final work, as long as the author’s selection and arrangement are original. See id. at 348, 111 S.Ct. 1282 (“[E]ven a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.”); Yurman Studio, Inc. v. Castaneda, 591 F.Supp.2d 471, 494 (S.D.N.Y.2008). The So Defendants do not dispute that the Stella Pieces are sufficiently original to survive cancellation of the Registration. The Court thus finds that for the purpose of determining whether RFMAS has a valid copyright in the Stella Pieces, the work is sufficiently original. 2. Presumption of Validity of the Copyright and Facts Stated in the Certificate Under 17 U.S.C § 410(c) (“Section 410(c)”), a “certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” Possession of a certificate of registration provides its holder with a rebuttable presumption of ownership of a valid copyright. See Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir.2001); Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.1997). It also creates a rebuttable presumption that all facts stated in the certificate are true. See Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 111 (2d Cir.1998). At that point, “[t]he party challenging the validity of the copyright has the burden to prove the contrary.” Hamil America Inc. v. GFI, 193 F.3d 92, 98 (2d Cir.1999); see also Castaneda, 591 F.Supp.2d at 484 (“A plaintiffs ‘proffer of its certificate of copyright registration thus shifts to the defendant the burden of proving the invalidity of the copyright and there the burden rests, unless the presumptions are rebutted.’ ” (quoting Fonar, 105 F.3d at 104) (alterations omitted)). “[T]he presumption of validity may be rebutted where other evidence in the record casts doubt on the question.” Fonar, 105 F.3d at 104 (quotation marks and emphasis omitted). It is undisputed that RFMAS has a certificate of registration for the nine Stella Pieces at issue in the form of the Registration. In addition, regardless of whether first publication of the Stella Pieces occurred in 2001 or 2002 (an issue which the parties dispute), the certificate, dated April 28, 2004, was made within five years of first publication. Thus, the Registration constitutes prima facie evidence that RFMAS’s copyright is valid, entitling RFMAS to a rebuttable presumption of its validity. The presumption of validity as to the statements contained in the certificate, however, is another matter. RFMAS filed the Complaint in this case on November 11, 2006, and the Amended Complaint on May 9, 2007. On January 10, 2008, Scognamiglio was deposed in connection with this case. At that deposition, Scognamiglio provided testimony as to dates and locations of the creation and publication of the Stella Pieces. For example, Scognamiglio stated that the first sale of the relevant Stella jewelry took place in the spring of 2002, and that the first purchase order was received at the “end of January 2002.” (Scognamiglio Dep. at 46.) He further stated that the pieces were never sold abroad before being sold in the United States in 2002. (See id. at 122.) Scognamiglio was presented with a copy of the Registration at that deposition, which corroborated that testimony. (See id. at 121; Prescott Aug. Decl. Ex. 2.) Later that day, Scognamiglio provided testimony inconsistent with his earlier testimony, stating that the “whole collection” was first sold in Italy in 2001 “to a company to distribute it in Italy.” (Scognamiglio Dep. at 141.) On February 5, 2008, Scognamiglio testified that the works in the Stella collection were first sold to his parents’ distribution company in Italy in 2001. (Id. at 325-27.) Fact discovery here closed on March 14, 2008. On June 26, 2008, more than three months after fact discovery closed, and more than five months after he provided testimony in his deposition that was inconsistent with the information contained in the Registration, RFMAS filed the Supplementary Registration, amending the following: (1)The response to “Name of Author” (Section 2a) was changed from “R.F.M.A.S., Inc. d/b/a Faraone Mannella” to “Amedeo Scognamiglio and Roberto Faraone Mennela”; (2) The response to “Was this contribution to the work a ‘work made for hire’?” (Section 2a) was changed from “yes” to “no”; (3) The response to “Author’s Nationality or Domicile” (Section 2a) was changed from “USA” to “Italy”; (4) The response to “Year in Which Creation of This Work Was Completed” (Section 3a) was changed from 2002 to 2001; (5) The response to “Nation of Publication of This Particular Work” (Section 3b) was changed from providing no response to “Italy”; (6) The response to “Date of First Publication of This Particular Work” (Section 3b) was changed from “May 1, 2002” to “October 1, 2001,” and was amended again on July 8, 2008 by fax request to “May 1, 2001”; and (7) The response to “Transfer” (Section 4) was changed from providing no response to “Transfer is By Assignment.” Even with these modifications, RFMAS is entitled to a prima facie presumption of the copyright’s validity, as corrections to a certificate of registration do not affect the presumptive validity of a copyright. See, e.g., Hamil, 193 F.3d at 98-99 (finding that the filing of a supplementary registration to correct technical deficiencies in a certificate do not affect a copyright’s validity unless accompanied by fraud). Even if RFMAS had willfully misstated a fact in the Application — and the Court need not and does not now make such a determination — the Court may invalidate the Registration only if the Copyright Office’s knowledge of the truth would have caused it to reject RFMAS’s application. See Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984) (“Only the knowing failure to advise the Copyright Office of facts which might have occasioned a rejection of the application constitutes reason for holding the registration invalid .... ” (quotation marks and alterations omitted)). With one exception, the So Defendants point to no evidence of alleged misstatements by RFMAS that, if known, would have caused the Copyright Office to reject RFMAS’s application. The copyright is therefore presumptively valid, and the burden shifts to the So Defendants to rebut that presumption of validity. However, RFMAS is not entitled to a presumption of the accuracy of the statements contained in the Supplementary Registration. RFMAS filed the Supplementary Registration over a year and a half after initiating this action, and more than five months after having been made aware of inconsistencies between the Registration and Scognamiglio’s testimony during his January 2008 deposition. Indeed, the Supplementary Registration was filed more than three months after the close of fact discovery and just over one month before the deadline for filing summary judgment briefs. Hence, this is not a matter of immediately correcting an innocent mistake; RFMAS was aware of the supposedly inaccurate information contained in the Registration, yet failed to submit corrections until the last minute. By waiting until after the close of fact discovery to correct the Registration, despite being aware its supposed inaccuracies for several months, RFMAS forfeited any presumption as to the accuracy of the statements contained in the Supplementary Registration. Such an outcome is consistent with Section 410(e)’s underlying purpose. Section 410(c) offers a presumption of the accuracy of statements contained in a certificate because “[t]he plaintiff should not ordinarily be forced in the first instance to prove all of the multitude of facts that underline [sic] the validity of the copyright unless the defendant, by effectively challenging them, shifts the burden of doing so to the plaintiff.” Notes of Committee on the Judiciary, H.R.Rep. No. 94-1476 (“Committee Notes”). This language evinces Congress’s intent to generally afford a plaintiff with the tools to establish a presumption of a copyright’s validity. However, there is little reason for a court to award a presumption of accuracy to statements in a supplementary registration that do not endanger the presumption that the copyright is valid. In this case, as discussed further below, the Court has determined that the copyright was presumptively valid as originally filed. Therefore, RFMAS need not rely upon the accuracy of the statements contained in the Supplementary Registration to sustain the presumption of the validity of the certificate. Accepting the statements contained in the Supplementary Registration as presumptively accurate, however, could prejudice the So Defendants. RFMAS asks that a plaintiff, months after the close of fact discovery, be free to neutralize potentially unfavorable deposition testimony simply by filing a supplementary registration and declaring that the new and contradictory statements contained therein are presumptively true. To some extent, such an outcome is an unavoidable eomponent of Section 410(c). By not filing the Supplementary Registration until after the close of fact discovery, however, RFMAS deprived the So Defendants of the ability to conduct discovery related to the Supplementary Registration (and there is no indication that RFMAS voluntarily provided discovery or disclosed this filing to the So Defendants in order to afford them an opportunity to reopen discovery for that limited purpose). Under these specific circumstances, to award RFMAS with a presumption as to the accuracy of the statements in the Supplementary Registration — that first publication of the Stella Pieces occurred in Italy in 2001, for example — would be inequitable and inconsistent with the purpose and spirit of the presumption. The Court does not at this point make a finding that RFMAS acted in bad faith by failing to file the Supplementary Registration until after the close of discovery. Nevertheless, RFMAS should not benefit from a presumption as to a statement’s validity when RFMAS was put on notice of the supposedly flawed contents contained in the original certificate during a deposition, but failed to correct the statements until many months later, after fact discovery closed. To permit such a presumption to stand would open an unacceptable loophole in Section 410(c), whereby a plaintiff could defuse unfavorable deposition testimony by “correcting” a registration on the eve of trial and nonetheless be rewarded with a presumption as to the statement’s validity. Finally, depriving RFMAS of the presumption of the accuracy of the amended submissions does not affect the presumptive validity of the copyright. The Supplementary Registration affects whether RFMAS should receive an evidentiary presumption that: (1) the authors of the work are Scognamiglio and Mennella; (2) the work was not made for hire; (3) the authors’ nationality or domicile is Italy; (4) the work was created in 2001; (5) the nation of publication was Italy; (6) the first publication occurred on May 1, 2001; and (7) the work was transferred by assignment. Even without deeming these statements to be presumptively valid, the Court has determined that the copyright is presumptively valid. In other words, the statements contained in the Supplementary Registration do not cure an otherwise invalid certificate. This finding distinguishes the instant case from others addressing Section 410(c), where the amended statements cure a registration that otherwise would be defective. See, e.g., eScholar, LLC v. Otis Educ. Sys., Inc., No. 04 Civ. 4051, 2005 WL 2977569, at *13 (S.D.N.Y. Nov. 3, 2005) (holding that the “innocent error rule” applies because the Copyright Office “clearly would have accepted” the application if it contained the proper information). When facing unusual circumstances, courts have exercised caution before awarding statements provided in a supplementary registration with presumptive validity. In NBC Subsidiary (KCNC-TV), Inc. v. Broadcast Info. Servs., Inc., 717 F.Supp. 1449 (D.Colo.1988), for example, the parties disputed whether a work had been published. The certificate of registration did not contain a date of first publication, but after the close of discovery, the plaintiff attempted to file a supplementary registration providing that date for the first time. The court stated even if the Copyright Office accepted the supplementary registration, the filing would not cancel the earlier registration, but rather bring to the public’s attention a possible error or omission. See id. at 1451. The court concluded that “the prima facie effect of the registration as it relates to the issue of publication will be neutralized because it will contain conflicting statements of facts.” Id.; see also William A. Graham Co. v. Haughey, 430 F.Supp.2d 458, 467-68 (E.D.Pa.2006) (holding that a finding of bad faith may not be premised on a mere inconsistency between earlier and supplementary registrations but also holding that a registrant “cannot rely on any presumption emanating from” supplementary registrations correcting mistakes of an initial registration, without satisfactorily explaining the inconsistencies (citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999))). The instant case poses unusual circumstances that were likely not considered by the drafters of Section 410(c). Indeed, the Committee Notes state that a plaintiff “should not ordinarily be forced in the first instance to prove all of the multitude of facts” (emphasis added), suggesting that extraordinary circumstances may warrant a denial of the presumption if such a result would serve the principles of equity. In the unique circumstances present in this case, it would be inequitable to provide RFMAS with a presumption that its modified statements are valid. While the Copyright Office has a procedure for correcting innocent and inadvertent misstatements, and while courts generally refrain from invalidating certificates based on such misstatements, courts also have a duty to ensure that such revisions are made fairly and in a way that will not prejudice defendants. Here, such a prejudice may have occurred — the So Defendants indicate they were not aware of the Supplementary Registration until they received RFMAS’s summary judgment brief, and RFMAS had ample time to provide corrections to the Copyright Office prior to the close of fact discovery but failed to do so. The Court therefore concludes that while RFMAS is entitled to a rebuttable presumption of the copyright’s validity, it is not entitled to a presumption of the validity of the statements contained in the Supplementary Registration. The So Defendants’ motion for summary judgment on this issue is granted only as it challenges the presumptive validity of the statements contained in the Supplementary Registration, and RFMAS’s corresponding motion for summary judgment as to this issue is denied. In denying RFMAS the presumption of validity as to the statements contained in the Supplementary Registration, the Court makes no determination regarding the credibility of those statements. “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996); see also Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 174 (2d Cir.2006) (“[Cjredibility, in the ordinary course of things, is for a fact-finder to evaluate.”). If the factfinder should determine that the Registration contains errors, the Court will decide at that time whether such inaccuracies render the copyright invalid. As to the factual disputes regarding whether (1) the authors are Scognamiglio and Mennella or RFMAS; (2) the work was or was not “made for hire”; (3) the authors’ nationality or domicile is Italy or the United States; and (4) the work was or was not transferred by assignment, such determinations will not likely have any impact on the copyright’s validity. To the extent that the Registration may contain errors on these four issues, the Court cannot cancel the Registration unless the So Defendants point to evidence that, if known, would have led the Copyright Office to reject the Registration. The parties offer two suppositions regarding these statements: (1) the version contained in the Registration, where RFMAS is the author and the work is a “work for hire”; or (2) the version contained in the Supplementary Registration, where Mennella and Scognamiglio are the authors, and the work was not a “work for hire,” but rather was transferred by assignment to RFMAS. Even if the factfinder ultimately concludes that the Registration does not reflect the proper authors and ownership, the So Defendants present no prospect, supported by evidence, that would have led the Copyright Office to reject the Application, and courts routinely reject challenges to registrations based on such technicalities that are easily corrected. See, e.g., eScholar, 2005 WL 2977569, at *13 (finding that the errors at issue “would not have led to the rejection of the application if they were discovered” and thus the “copyright is not invalid as a matter of law even if it did not comply with the technical requirements”); Huthwaite, Inc. v. Sunrise Assisted Living, Inc., 261 F.Supp.2d 502, 510-11 (E.D.Va.2003) (holding that a “technical error,” without any evidence that it is “anything other than inadvertent and immaterial, without effect on the validity of the registration,” is not the type that renders “a registration invalid for the purpose of § 411(a)”). Therefore, while it is for the factfinder to determine the proper author of the work and whether the work was a work for hire or was transferred by assignment to RFMAS, how the factfinder resolves these factual disputes will not likely have a meaningful effect on the outcome of this action. The same cannot be said, however, for the factual disputes regarding whether (1) the work was created in 2001 or 2002; (2) the nation of first publication was the United States or Italy; and (3) the first publication occurred in May of 2001 or May of 2002. Although resolution of these three issues will have no bearing on whether the copyright is valid (the copyright would be valid, whether first published in the United States in 2002 or in Italy in 2001), it does have potential consequences for determining whether RFMAS may alternatively seek copyright protection pursuant to the Berne Convention. In particular, if the So Defendants successfully rebut RFMAS’s presumption of the copyright’s validity and if the work was first published in Italy in 2001, then RFMAS arguably could secure copyright protection for the Stella Pieces under the Berne Convention. See 17 U.S.C. § 104(b)(2). The Court addresses this issue more fully below. 3. Registration of a Jewelry Collection in a Single Application In an attempt to rebut the presumption of the copyright’s validity, the So Defendants argue that the Registration is invalid because it does not meet the requirements of the Copyright Act. Specifically, the So Defendants contend that the Registration contains approximately eighty “largely unrelated items,” and that “[s]uch a group of unrelated items may not be registered as a single registration.” (So Defendants’ Memorandum of Law in Support of Summary Judgment, dated August 11, 2008 (“So Mem.”), at 5.) The Copyright Act allows multiple items to be registered in a single application as either (1) a group registration or (2) a single work registration. The distinction between the two is critical, as the requirements for a group registration are different from those for a single work registration. The Court finds that the Registration cannot be valid as a group registration of jewelry designs. Under 17 U.S.C. § 408(c)(1), “[t]he Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration. The regulations may require or permit ... a single registration for a group of related works.” Under this authority, the Register of Copyrights has issued regulations permitting group registration for “automated databases,” “related serials,” “daily newspapers,” “contributions to periodicals,” “daily newsletters,” and “published photographs.” 37 C.F.R. § 202.3(b)(5)-(10). However, the Register of Copyrights has not issued regulations explicitly permitting group registration of jewelry designs or sculptural works, rendering such works incompatible with group registration. See Castaneda, 591 F.Supp.2d at 492 & n. 115 (recognizing that “neither sculptural works nor jewelry designs are included in the group registration regulations” and concluding that jewelry collections “properly fall under the category of single work registrations rather than group registrations”); see also Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 204 (3d Cir.2005) (“Since the Register of Copyrights has not promulgated regulations allowing for group registration of sculptural works, we conclude that Kay Berry’s registration is not valid under the current group registration provisions.”). Therefore, the Registration is not valid as a group registration of jewelry designs. However, the Registration might be valid as a single work registration of RFMAS’s jewelry designs. The relevant regulation here is 37 C.F.R. § 202.3(b)(4)(i)(A) (“Section 202.3(b)(4)”), which states that “all copyrightable elements that are otherwise recognizable as self-contained works, that are included in a single unit of publication, and in which the copyright claimant is the same” shall be considered a single work and thus may be filed for registration on a single application. The So Defendants contend, however, that because many of the approximately eighty items pictured in the deposit accompanying the Registration “are completely unrelated to each other,” RFMAS has not provided any “evidence that demonstrates the existence of a ‘single unit of publication’ containing all of the items in the deposit,” and the Registration is therefore invalid as a single work registration. (So Mem. at 5.) Jewelry collections are eligible to be registered in a single work registration. This issue was recently discussed in Castaneda, where the defendants sought to invalidate the plaintiffs registration for a jewelry collection on the same grounds as those offered by the So Defendants. There the court held: [J]ewelry collections properly fall under the category of single work registrations rather than group registrations.... [A] single work registration for a published work covers “all copyrightable elements that are otherwise recognizable as self-contained works, that are included in a single unit of publication, and in which the copyright claimant is the same.” In this case, a collection of jewelry — usually a set of pieces thematically related and released for sale at the same time — can be deemed a single unit of publication. 591 F.Supp.2d at 492 (footnotes omitted). While Castaneda states that a collection of jewelry is “usually a set of pieces thematically related and released for sale at the same time,” id. (emphasis added), there is no requirement that the pieces must be thematically related. Rather, Section 202.3(b)(4) requires only that: (1) all copyrightable elements must be otherwise recognizable as self-contained works; (2) the items must be included in a single unit of publication; and (3) the copyright claimant must be the same. See Kay Berry, 421 F.3d at 205 (“The single work registration regulation is silent on whether the individual, self-contained elements of the ‘single work’ be ‘related’ in order to be registered. Instead, single work registration requires, in the case of published works, that all of the self-contained works be ‘included in a single unit of publication’ and share the same copyright claimant.”). The So Defendants do not challenge the first and third requirements, limiting their challenge to whether the items in the deposit were originally included in a “single unit of publication.” The Court has already found that RFMAS is entitled to a presumption of the copyright’s validity; this presumption includes the preliminary determination by the Copyright Office that the Stella collection was included in a single unit of publication. See Fonar, 105 F.3d at 106 (“[W]e think that a presumption of regularity and appropriateness in filing is ordinarily subsumed in the presumption of validity that attaches to a certificate of copyright registration.”); Gross v. NYP Holdings, Inc., No. 06 Civ. 7863, 2007 WL 1040033, at *4 (S.D.N.Y. April 4, 2007) (citing Fonar in refusing to find that photographs were improperly registered as a single work). RFMAS also points to a letter sent by Joanna Corwin, an Examiner in the Visual Arts Section of the Copyright Office, dated August 27, 2004. (See Prescott Aug. Decl. Ex. 6 (the “Corwin Letter”).) The Corwin Letter informed RFMAS that “[t]his is a collection of individual works which were apparently published as a single unit. Registration has been made because at least one work in the collection would support an independent claim to copyright. Several, however, if considered separately, would not support an independent claim and would not be protected by copyright.” (Id.) While the Corwin Letter’s language that “[t]his is a collection of individual works which were apparently published as a single unit” may constitute form language, the Castaneda Court cited to an examiner’s letter containing identical language in denying the defendants’ request to invalidate a copyright. See 591 F.Supp.2d at 492 & n. 118. The Court likewise holds that RFMAS is entitled to a presumption that the pieces in the fifty-four photographs depicted in the deposit were first published as a single unit. Consequently, the So Defendants’ motion for summary judgment on this issue is denied. However, such a presumption is rebuttable, and the So Defendants argue that evidence in the record indicates that the items in the Registration were not first published as a single unit. While the Court is not aware of, nor do the parties direct the Court to, any case that provides a definition of the term “single unit of publication,” the Copyright Act provides defines “publication” as the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies ... to a group of persons for purposes of further distribution ... or public display, constitutes publication. A ... display of a work does not of itself constitute publication. 17 U.S.C. § 101. The distribution of catalogs and collections of photographs to multiple parties has been found by other courts to constitute a single unit of publication. See, e.g., Kay Berry, 421 F.3d at 203, 206; Gross, 2007 WL 1040033, at *4. RFMAS did not first distribute the items in the deposit in a catalog or brochure; rather, Scognamiglio testified in his deposition that the items were shipped to his parents’ store. (Scognamiglio Dep. at 150.) Scognamiglio further stated that his parents were the “exclusive distributors for the Italian market,” and the items were not offered or sold “to the public” or to any other companies or persons, though his parents’ store did make some sales. (Id.) Aside from the testimony of RFMAS’s principals, RFMAS has not adduced any evidence of such a transaction with Scognamiglio’s parents. Finally, a factual dispute exists as to the nature of the first publication (that is, whether the items were first published in the United States in 2002, or in Italy in 2001), based upon both Scognamiglio’s inconsistent testimony and the facts contained in the original Registration. See Home Design Servs., Inc. v. B & B Custom Homes, LLC, No. 06-cv-00249, 2007 WL 3342695, at *1 (D.Colo. Nov.8, 2007) (finding existence of genuine issue of material fact as to publication date for purpose of determining existence of valid registration). The So Defendants have sufficiently raised issues of material fact, based upon “other evidence in the record,” Fonar, 105 F.3d at 104, as to whether the items in the Registration were first included in a single unit of publication. Indeed, resolution of this issue depends largely on the credibility of RFMAS’s principals, and “[assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Rule, 85 F.3d at 1011. The So Defendants therefore may attempt to rebut at trial the presumption of validity afforded to RFMAS as to whether the Registration is valid as a single work registration. Accordingly, RFMAS’s motion for summary judgment on this issue is denied. 4. First Publication in Italy RFMAS next argues that whether or not the Registration is valid, the Stella Pieces are nonetheless protected under U.S. copyright law. Specifically, RFMAS asserts that because it first published its Stella designs in Italy in 2001, the Stella Pieces are protected by U.S. copyright law pursuant to the Berne Convention, to which both Italy and the United States are signatories. Under 17 U.S.C. § 104(b)(2), a copyright is protectable under U.S. law if “the work is first published in ... a foreign nation that, on the first day of publication, is a treaty party.” There is no dispute that in 2001, both the United States and Italy were signatories to the Berne Convention. See United States Copyright Office, Circular 38a, International Copyright Relations of the United States, available at http:// www.copyiight.gov/circs/circ38a.pdf. RFMAS asserts that its principals created the Stella Pieces in Italy in 2001 and that the pieces were first published in Italy in 2001, while the So Defendants argue that other evidence in the record suggests that the Stella Pieces were first published in the United States in 2002. As discussed above, RFMAS’s assertion that the Stella designs were created and published in Italy in 2001 relies heavily (indeed, almost exclusively) on the testimony of RFMAS’s principals. In addition, the Court has already determined that RFMAS is not entitled to a presumption of validity as to the revised creation and first publication locations and dates. Resolution of this issue presents a genuine dispute of material fact that largely rests upon an assessment of credibility, and again, “[assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Rule, 85 F.3d at 1011. Therefore, RFMAS’s motion for summary judgment on this issue is denied. D. UNAUTHORIZED COPYING OF THE STELLA PIECES Even if RFMAS succeeds in establishing that it owns a valid copyright in the Stella Pieces, RFMAS cannot succeed on the merits of its claim of copyright infringement unless it also establishes that the Defendants engaged in “unauthorized copying” of that work. Jorgensen, 351 F.3d at 51. To do so, “the copyright owner must demonstrate that (1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiffs.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir.2001) (quotation marks omitted). “Because copiers are rarely caught red-handed, copying has traditionally been proven circumstantially by proof of access and substantial similarity.” Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir.1988); see also City Merch., Inc. v. Broadway Gifts Inc., No. 08 Civ. 9075, 2009 WL 195941, at *1 (S.D.N.Y. Jan.27, 2009). RFMAS now seeks a determination by the Court that (1) Defendants accessed the Stella Pieces; and (2) the Gate B9 pieces are substantially similar to the protectible elements of the Stella Pieces. The So Defendants seek a determination by the Court that the Gate B9 pieces are not substantially similar to the protectible elements of the Stella Pieces. The Richemont Defendants seek a determination by the Court that (1) they are not liable for direct infringement because RFMAS has not adduced any evidence that the Richemont Defendants composed the Gate B9 pieces; and (2) they are not liable for indirect infringement. The Court addresses each argument in turn. 1. Access RFMAS first argues that, as a matter of law, Defendants accessed the Stella Pieces. According to RFMAS, it need prove only that Defendants had a reasonable opportunity to see the work, and such access by Defendants is established “through innumerable meetings, viewings, and wide distribution (in the same store as Defendants’ jewelry and in magazines) before [the] alleged design of Defendants’ line.” (RFMAS’s Memorandum of Law in Support of Summary Judgment Against the So Defendants, filed August 11, 2008 (“RFMAS/So Mem.”), at 6.) RFMAS further argues that the So Defendants admitted to seeing the designs in RFMAS’s showroom and in Neiman Marcus before designing the Gate B9 jewelry in 2005. The So Defendants counter that RFMAS has not sufficiently described what is meant by the term “Stella collection,” and that RFMAS thus has not introduced sufficient evidence that the nine pieces at issue were accessed by the So Defendants. The So Defendants conclude that “there is no evidence that Mimi So or any other MSI or Richemont representative saw these particular items when visiting Plaintiffs offices,” and that there is thus an issue of fact as to access. (So Defendants’ Opposition to RFMAS’s Memorandum of Law in Support of Summary Judgment, dated September 19, 2008, at 6.) “Access may be inferred when a defendant had a reasonable opportunity to view the plaintiffs work before creating its own.” Eyal R.D., 576 F.Supp.2d at 642 (citing Gaste, 863 F.2d at 1066-67). “Access means that an alleged infringer had a ‘reasonable possibility’ — not simply a ‘bare possibility’ — of [viewing] the prior work; access cannot be based on mere ‘speculation or conjecture.’ ” Jorgensen, 351 F.3d at 51 (citing Gaste, 863 F.2d at 1066). Further, just any evidence of access will not do — “[i]n order to support a claim of access, a plaintiff must offer significant, affirmative and probative evidence.” Id. (quotation marks omitted). The Court faces particular difficulty in resolving this issue on the record before it because RFMAS’ allegation in this regard is only that the “Stella collection” was accessed, and that term may or may not include the nine registered Stella Pieces. While RFMAS repeatedly states that it has received a copyright registration for nine Stella Pieces (see, e.g., RFMAS/So Mem. at 3-4), no submission from RFMAS establishes that these nine specific pieces were accessed by Defendants. RFMAS argues that the Complaint, the supplemental interrogatory responses, and Scognamiglio’s deposition testimony provide Defendants with sufficient notice of which designs were allegedly accessed; however, RFMAS directs the Court only to the “prime pieces” at issue. (See RFMAS’s Reply in Support of Summary Judgment Against the So Defendants, dated October 10, 2008, at 2 n. 1.) The Court hesitates to deem the Stella Pieces as having been accessed when RFMAS has not clearly indicated the evidence supporting access for each of the particular nine registered works, instead referring to access of either RFMAS jewelry in general, or of the “Stella collection” as a whole. RFMAS argues that it does not need to specify the accessed pieces because all of its designs were displayed in its showroom, but such self-serving testimony, without more, is not the sort of “significant, affirmative and probative evidence” that entitles to RFMAS to a finding of access as a matter of law. Jorgensen, 351 F.3d at 51. Rather, Defendants may challenge through cross-examination whether “all” designs were displayed in RFMAS’s showroom and the factfinder should determine whether Defendants had a “reasonable opportunity” to view each of the nine Stella Pieces at issue in this litigation on the days that Defendants or their representatives visited the showroom. RFMAS further supports its allegations of access through evidence of magazine advertisements and distribution of the Stella Pieces in stores. In Yurman Design, Inc. v. Chaindom Enters., Inc., the court found access based on the plaintiffs display of the contested work at international jewelry shows, sales of the item in department and jewelry stores, and advertising campaigns. No. 99 Civ. 9307, 1999 WL 1075942, at *6 (S.D.N.Y. Nov.19, 1999). While sufficient sales and advertising can establish access, RFMAS does not clearly match up its submitted evidence of sales or advertisements with each of the nine registered Stella Pieces at issue. The Court therefore elects to take the prudent course of denying RFMAS’s motion for summary judgment on this issue, and, if this issue proceeds to trial, requiring RFMAS to present evidence of access as to each of the nine registered Stella Pieces. Evidence that one piece was accessed does not by itself constitute evidence that other pieces were accessed. See, e.g., Taylor Corp. v. Four Seasons Greetings LLC, Civ. No. 01-1293, 2003 WL 23527789, at *3 (D.Minn. Dec.11, 2003) (finding access because defendant had access to each of plaintiffs works). 2. Substantial Similarity RFMAS next alleges that the Stella Pieces and the Gate B9 pieces are substantially similar. RFMAS does not provide analyses or comparisons of each of the nine Stella Pieces at issue, but rather alleges that it should be the beneficiary of an adverse inference based upon Defendants’ alleged spoliation of evidence. RFMAS provides a side-by-side analysis of only one piece — the large-link necklace— and asserts that “it is apparent a reasonable fact finder would find the parties’ large link pieces have the same ‘total concept and feel’ ” (RFMAS/So Mem. at lb-16.) Relying on this one comparison, RFMAS asks the Court to infer that any of Defendants’ pieces that are unavailable for direct comparison based on Defendants’ alleged destruction of samples would also be substantially similar. (Id.) As the Court has already concluded that any determination regarding spoliation should be made by Judge Dolinger, it is inappropriate for the Court to make any findings concerning of substantial similarity of the Stella and Gate B9 pieces stemming from any alleged spoliation. Rather, the Court will address whether the Stella and Gate B9 pieces are substantially similar based on the evidence in the record. “Because substantial similarity is customarily an extremely close question of fact, summary judgment has traditionally been frowned upon in copyright litigation.” Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.1980) (citations omitted). “However, summary judgment for non-infringement is appropriate ‘[i]f the similarity concerns only noncopyrightable elements of [a copyright holder’s] work, or no reasonable trier of fact could find the works substantially similar.’ ” Business Mgmt. Int’l, Inc. v. Labyrinth Bus. Sols., LLC, No. 05 Civ. 6738, 2009 WL 790048, at *16 (S.D.N.Y. March 24, 2009) (quoting Matthew Bender & Co., Inc. v. West Pub. Co., 158 F.3d 693, 705 (2d Cir.1998)). When copyright protection “is limited to the particular selection or arrangement” of common elements from the public domain, as is the case here, “the protection given [the holder] is thin”; a competing work will not be found to infringe “so long as the competing work does not feature the same selection and arrangement.” Tufenkian, 338 F.3d at 136 (quoting Feist, 499 U.S. at 349-51, 111 S.Ct. 1282); see also Castaneda, 591 F.Supp.2d at 485-86. In copyright infringement cases concerning jewelry designs, courts have applied one of two tests: (1) the “ordinary observer” test; or (2) the “discerning observer” test. “The ordinary observer test asks ‘whether the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.’ ” Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F.Supp.2d 506, 516 (S.D.N.Y.2003) (quoting Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 765 (2d Cir.1991)) (alterations in original). “If an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work, then the two products are substantially similar. The fact-finder must examine the works for their ‘total concept and feel.’ ” PAJ, 262 F.3d at 111 (quotation marks and citations omitted). However, “[w]hen a work contains both protectible and unprotectible elements, the inspection must be more discerning” and the “discerning observer” test applies. Id. (citing Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995)). In doing so, the Court “must attempt to extract the unprotectible elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, 71 F.3d at 1002 (emphasis in original). “This more discerning test does not change the degree of similarity required, only what elements of the works are being compared.” Golden Treasure, 275 F.Supp.2d at 516 (citing Knitwaves, 71 F.3d at 1002-03). While courts are not in agreement as to which test is appropriate for jewelry designs, compare M. Lady, LLC v. AJI, Inc., No. 06 Civ. 0194, 2007 WL 2728711, at *7 (S.D.N.Y. Sept. 19, 2007) (applying “ordinary observer” test to jewelry designs); Golden Treasure, 275 F.Supp.2d at 517 (same); with Castaneda, 591 F.Supp.2d at 496 (applying “discerning observer” test to jewelry designs), the Court is persuaded that the “ordinary observer” test is the proper vehicle for determining whether the Gate B9 pieces are substantially similar to the Stella Pieces. As Golden Treasure explained, In this case, the plaintiffs’ jewelry designs are not composed of protected and unprotected elements; rather, although the jewelry designs ... are created from a combination of common elements, the designs are protected in their entirety because it is the combination of elements that is copyr