dissenting:
I respectfully dissent. The record on this appeal presents several grounds for affir-mance, but I will confine this dissent to the plaintiffs failure to rebut testimony of independent creation, testimony that affords a complete defense.
The district court apparently assumed, without deciding, that plaintiff had made out a prima facie case. A copyright plaintiff can make out a prima facie case of unauthorized copying by demonstrating: (1) that defendants had access to the copyrighted work; and (2) that the allegedly infringing work and the copyrighted work are substantially similar.1 Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996) (citing Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir.1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 376 (1994)). On the current record, the evidence of access, if any, is extremely weak. Evidence that the two renderings of ostrich feathers are substantially similar is also slight: one ostrich plume looks like another, so it is hard to say how much of the similarity is traceable to protected elements rather than (a) elements that are not sufficiently original or (b) elements that are inextricably wedded to the idea of an ostrich feather pattern rather than its expression. But this evidence was evidently presumed— for the purpose of the summary judgment motion — to constitute a prima facie ease, and I will make the same assumption.
Defendants, however, have come forward with the affidavits of third party witnesses who aver that they saw the allegedly infringing pattern in defendants’ possession several years prior to the date on which plaintiff claims to have created the infringed pattern. The question then is whether the question of material fact deemed to have been raised (for the purposes of the motion) by plaintiffs putative evidence of “inferential copying” remains in genuine dispute given defendants’ uncontradieted direct evidence that it did not copy plaintiffs pattern. It does not. Defendants have effectively rebutted the presumption of copying. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.11[D], at 12-181-12-182 (1998) (“If the defendant offers convincing documentary evidence establishing independent creation, it is incumbent on plaintiff to counter that evidence.”); see also Novak v. National Broadcasting Co., 752 F.Supp. 164, 170 (S.D.N.Y.1990) (Sweet, /.) (granting summary judgment to defendant on the issue of prior independent creation). Plaintiff has offered no refutation of the non-parties’ affidavits, has asserted no ground of bias, and has sought no .discovery that might lead to rebuttal.
In Favia v. Lyons Partnership, 1996 WL 194306 (S.D.N.Y. April 23, 1996), aff'd, 112 F.3d 503 (2d Cir.1997) (table), summary judgment was granted in favor of a defendant who proffered unrebutted evidence showing that the defendant had created his version of the allegedly infringing song some time before the plaintiff’s asserted date of creation. Judge Sotomayor noted:
This evidence is fatal to [the plaintiffs] ease, and would be so even if [the plaintiff) had met her affirmative burdens. Because she offers no evidence to controvert [the defendant’s] proof of independent creation, summary judgment must follow as a matter of law.
Id. at *4; see also Repp v. Webber, 132 F.3d 882, 891 (2d Cir.1997) (noting that independent creation is an affirmative defense and may be used to rebut a prima facie case of infringement); Eden Toys v. Marshall Field & Co., 675 F.2d 498, 501 (2d Cir.1982) (“Evidence of independent creation may be intro*117duced by a defendant to rebut a plaintiffs prima facie case of infringement.”).
The majority relies on our (distinguishable) decision in Repp v. Webber, 132 F.3d 882 (2d Cir.1997), in which plaintiff Repp alleged that his composition, “Till You,” was infringed by defendant Webber’s “Phantom Song,” and Webber counterclaimed on the ground that “Till You” was an infringement of Webber’s earlier song, “Close Every Door.” Id. at 884. Webber offered his affidavit and that of his wife, attesting that “Phantom Song” was composed in 1983; however, “Till You” was distributed as part of an album that was released in 1978, so Webber was compelled to rely on expert testimony, which was contradicted by expert testimony on the other side: plaintiffs experts opined that “Phantom Song” was so strikingly similar to “Till You” as to preclude any conclusion other than copying, while Webber’s expert traced the characteristic phrases in “Phantom Song” to three Webber songs (including “Close Every Door”) that predated the plaintiffs creation of “Till You.” Thus, in Repp there was conflicting evidence as to a material fact.
Not so in the present case. Plaintiff has presented no evidence, expert or otherwise, tending to show that the allegedly infringing pattern could only have been derived from the plaintiffs design, and has rested on its weak, putative prima facie ease when (in Professor Nimmer’s word) it is “incumbent” on the plaintiff to come forward with some evidence to counter the defendant’s evidence of prior creation.
The defendants here have offered affidavits of third parties whose testimony is both unimpeaehed and unrebutted, whereas in Repp we faulted the district court for “accepting] only the version of interested witnesses on the question of separate creation.” Id. at 891.
The majority cites an October 1995 fax in which the president of one of the defendant companies arranged for the feather pattern to be engraved, and concludes that a question is thereby raised as to whether the defendants’ design was not created until 1995. The fax order shows nothing more than that defendants did not have an engraving of the design in 1995; they may never have made an engraving, or they may previously have made one and lost or discarded it. The fax thus demonstrates that defendants had the design in 1995 (because they were sending it to be engraved), but does not suggest that they acquired it recently. (Defendants, unlike plaintiff, need not be the author of the design to prevail; there is therefore nothing suggestive in the fact that they may not have had the engraving in the first instance.)
An essential element of a copyright claim is unauthorized copying of the protected material. Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139 (2d Cir.1992). If, as the unre-butted testimony shows, the supposedly infringing pattern was in defendants’ possession as early as 1982, they cannot have taken the design from plaintiff, which claims to have created it in 1984. The essential element of copying is therefore rebutted. Because plaintiff bears the burden of proof, defendants have satisfied their burden under Rule 56 by showing “that there is an absence of evidence to support [an essential element of) the nonmoving party’s ease.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).
The majority opinion (in my view) arrives at the wrong result, but it should not be read to raise the bar for granting summary judgment on the defense of independent prior creation.
. As we noted in our recent opinion in Castle Rock Entertainment, Inc. v. Carol Publishing Grp., Inc., 150 F.3d 132, 137 (2d Cir.1998), this degree of similarity is properly known as "probative similarity” to distinguish it from the "substantial similarity” required to show that the copying that occurred was qualitatively and quantitatively great enough to fall afoul of the Copyright Act.