• by Steve McClellan  @mp_mcclellan, February 19, 2016

Last month, Judge Laura Taylor Swain of the U.S. District Court in Manhattan tossed a lawsuit brought by a well-known New York artist against Starbucks and MDC Partners ad shop 72andSunny for copyright infringement.

Now the artist, Maya Hayuk, has asked Swain to reconsider her decision, arguing that she blew the call.

The legal battle began last year after Starbucks broke a campaign for its Frappuccino line of drinks that featured artwork that Hayuk asserted looked so much like her own that it infringed on her copyrights.

Starbucks and 72andSunny had approached Hayuk about providing artwork for the upcoming Frappuccino campaign in 2014. After several meetings, Hayuk declined an offer to participate.

When the campaign broke last year, Hayuk sued.

But Judge Swain ruled last month that Hayuk’s case fell short of the standards necessary to make a copyright infringement claim stick.

In her ruling, Swain stated that while Hayuk cried foul for what she characterized as the misappropriation of the "core" of her work,"Plaintiff has not cited precedent for the notion that appropriation of the 'core' of a work or set of works…is a proper basis for a finding of a copyright violation. Nor has she explained how her artistic 'core' appropriation concept differs from an assertion that defendants have copied her style or elements of her ideas, neither of which are protected by copyright law."

In her petition to persuade Judge Swain to reconsider her ruling, Hayuk argued that the judge "overlooked" case law that was presented to the court, and which merited a ruling in her favor. "Specifically, the Court overlooked key decisions in the Second Circuit when it concluded that none of Defendant’s Frappuccino Works are "substantially similar to the 'total concept and feel' of protectable elements of any of the Hayuk works."