[Note: I could not make this up if I tried. Everything that follows is absolutely true.]
Those with and without a good sense of what copyright law actually protects sue a lot of other people to humorous results. None more so than this case that occurred in the Northern District of Illinois before Judge Gettleman, JCW Investments, Inc. v. Novelty, Inc. 289 F.Supp.2d 1023. Since you'd never believe it if I just paraphrased, I'll extensively quote a filing from the case. This brief
responds to Plaintiff's motion for a preliminary injunction to prevent Defendant from selling plush toys known as "Fartman" and "Fartboy" (hereafter referred to collectively as "Fartman"). Plaintiff alleges that "Fartman" infringes a copyright on protectable expression embodied in a plush toy known as "Pull My Finger Fred." Plaintiff further alleges irreparable harm with no adequate remedy at law. Defendant denies Plaintiff's allegations: "Fartman" shares no protectable expression with "Pull My Finger Fred"; Plaintiff has failed to show irreparable harm; and Plaintiff has adequate remedy at law.Oh but there's more. The facts:
Plaintiff manufactures and/or sells, among other items, plush toys known as: "Pull My Finger Fat Bastard"; "Pull My Finger Freddy Baby"; "Pull My Finger Fart Boy"; and "The Classic Dad, Pull My Finger Fred". See Exhibit 1. Defendant previously imported and sold plush toys known as "Fartman" and "Fartboy". See Exhibit 2. Without first corresponding with Defendant, Plaintiff sued Defendant claiming "Fartman" and "Fartboy" infringe a copyright on "Pull My Finger Fred." Plaintiff concurrently filed an emergency motion seeking a preliminary injunction against Defendant "for violation of the Copyright Laws of the United States." Plaintiff's motion relies exclusively on its copyright infringement cause of action."Copyright infringement of a plush toy?! How could that be?!" Read on:
"Pull My Finger Fred" expresses the idea of a lounging plush toy "classic dad" or "uncle" that vibrates with a fart and generates scatological cliches when his finger is pulled. See Exhibit 1 ("The Classic Dad, Pull My Finger Fred"), and Exhibit 3 ("You know our Uncle Fred."). "Fartman" is a different expression of this idea. Moreover, Fartman is a parodical superhero... Fartman and Fred both generate scatological cliches when someone pulls their fingers, i.e., they fart quakingly and make hackneyed comments about their farts. They share the most stereotypical of clothing: blue jeans and white T-shirts."Aha! They both have blue jeans and a white T-shirts! Those dirty infringers!" But wait... The brief goes on to enumerate forty-three characteristics of each plush toy to highlight the many differences. Among the more interesting are:
Note again, the above are verbatim from the brief. I've merely renumbered them. For those unfamiliar with one phrase used above, "Scenes a faire" refers to "incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic." Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y., 1978). The comparison of the characteristics of the two toys leads the defendants to argue,
- Fartman's shirt has "FARTMAN" emblazoned across his chest in red lettering. Fred's shirt is blank.
- Fartman's chair is brown vinyl; Fred's chair is green fabric, and is shaped differently than Fartman's.
- Fartman is wearing a red and yellow "F" hat; Fred wears no hat.
- Fartman and Fred are both smiling (as part of the scenes a faire of a pull-my-finger joke).
- Fartman makes the statements: "you smelt it you dealt it!"; "call 911 we have a gas leak!"; "rip-it-y-do-dah!"; "oh, I bet that one left tracks!"; and "na-na-na-Fartman!"; Fred makes none of these statements.
- Both Fartman and Fred make the statements "Did somebody step on a duck?" and "Silent, but deadly."
- Fartboy has a disproportionately large plastic finger that must be pulled approximately six inches on a string to activate its "pull-my-finger" joke; Fred has an electric switch in his plush finger that need only be grasped to activate Fred's "pull-my-finger" joke.
Fartman differs distinctly in artistic expression from Pull My Finger Fred in 38 of the 43 comparisons listed above in the statement of facts. Of the five comparisons above where Fartman and Fred are not completely different, two are inextricably intertwined with the underlying idea, and are thus unprotectable scenes a faire (i.e., Fartman and Fred are both smiling, and both have the voice of a man). One is unprotectable because it is part of the idea itself (i.e., both Fartman and Fred are made at least partially from fabric, since they are plush toys). One regards statements that both Fartman and Fred make (i.e., "Did somebody step on a duck?" and "Silent, but deadly."). These statements are unprotectable cliche's [sic]. Finally, both Fartman and Fred are Caucasian. Obviously, no copyright protection is associated with expressing Fred as a particular race. Finally, even if there is some slight similarity in some aspect of expression, it is not "substantial". Copyright infringement requires substantial similarity of expression.Probably the best yet least developed argument the defendants made was this:
Granting a preliminary injunction in this case would unjustly tip the balance of rights Congress has allocated between authors under Article I, Section 8, clause 8 of the Constitution, because it would grant patent-like rights to Plaintiff's copyright by ordering the idea of Pull My Finger Fred be pulled from the public domain.Well, it turned out that the court was not persuaded by these (and other) arguments and summary judgment was eventually awarded to the plaintiffs. Read the opinion here (pdf). Almost a year after that decision, Fred and his friends rule the Farting Doll world, as the online FartMart only sells from that line. Buy yours there as you think about the ways that copyright law is (mis)used to extend monopolies into areas never imagined by our Constitution. Posted by Brian W. Carver at October 27, 2004 03:29 PM