[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.
...or at least to save the planet from wrongful intellectual property monopolies on its plants. Greenpeace recently emerged victorious in its opposition to a patent on the Indian Nap Hal wheat variety filed in the European Patent Office. The entity claiming inventorship of the wheat in question, esteemed for its superior baking qualities, was none other than Monsanto, arguably the Microsoft of the plant world for its propensity to file patents sun-up to sun-down. The problem in this case, the EPO concluded, was that Monsanto didn't invent the Nap Hal wheat at all. Rather, it was farmers in India who came up with the strain by breeding. Much as Monsanto might salivate at the prospect of collecting royalties from Indian farmers, you don't have to be concerned about sustainable agriculture in the developing world to agree the patent system was not designed to allow multinational corporations to reap what others have sowed.
The success of the Greenpeace challenge is but one example that the patent opposition procedure is alive and serving its intended purpose in the EPO. Not so much at our own PTO, but there are signs of life. As announced here at Boalt last spring, the Federal Trade Commission recently recommended an expanded opposition process in its proposal for patent reform. Not waiting for it to get easier, the Electronic Frontier Foundation has launched its own Patent Busting Project to challenge patents that betray the system's purpose and tread on the public domain. (EFF invites law students, patent attorneys, and prior art searchers to lend a hand to the Project.) Meanwhile, kudos to Greenpeace for keeping Nap Hal wheat free to use by the farmers who got down in the dirt to develop it.
I was just watching the 10pm replay of the Vice Presidential debate while simultaneously browsing the Internet and reading stories about Cheney's and Edwards' comments... so of course, when I heard Cheney, in response to allegations of inappropriate ties between Halliburton and the Bush administration, direct viewers to "factcheck.com, an independent web site," my fingers couldn't type fast enough. And where does this URL point?
See for yourself: http://factcheck.com
As of now, the link points to GeorgeSoros.com, which is running a big banner headline which reads "Why We Must Not Re-Elect President Bush." Imagine my surprise!
Presumably, Cheney intended to direct viewers to FactCheck.org, a "nonpartisan, nonprofit, 'consumer advocate' for voters that aims to reduce the level of deception and confusion in U.S. politics" run by the Annenberg Public Policy Center of the University of Pennsylvania. Oops.
A few questions are tickling my mind... how many people are there out there like me who actually look up a URL mentioned on TV, either instantaneously by walking to the computer, or later by writing down the URL? What are the political affiliations of these people likely to be? And was this just a colossal turn of bad luck and uber-slip-of-the-tongue for Cheney, or were George Soros' people quick enough on the ball to hear that URL when it was broadcast at the regular hour this evening and snap up the domain name? If it was the latter, could this be a case of "cybersquatting"? Neither Google's Cache nor Internet Archive's Wayback Machine have any record of previous sites at this address. Talking Points Memo reports that during the debate, factcheck.com was a dead URL, so it does seem that someone worked quickly to push a redirect through...
The US Forest Service operates a Mt. St. Helens VolcanoCam.
Their terms of use regarding the images are probably well-intentioned, but are an interesting example of a misunderstanding of both copyright law and the internet. The terms:
1. They give me permission to link to their page. (Woohoo!)
2. They give me permission to use the images, but ask[?] that I credit them, link back, and contact them if I do use them.
3. They don't give me permission to make derivative works, unless only the size of the image is changed and the aspect ratio kept intact. And if I do that, they ask[?] for a link back.
4. I cannot use frames on my website to capture their website.
5. I cannot require registration on MY site as a precondition to seeing the volcano images or links that I provide.
6. I cannot make any commercial use of the images, and if I use the images on my website, that page cannot even contain non-commercial advertising!
7. I am encouraged to make my web pages standards-compliant and Section 508 accessible.
Now, one would guess that these images are created by Forest Service employees, i.e., U.S. government employees, during the course of their employment, and so I believe all these images are in the public domain. A federal statute (17 USC Section 105) states that:
"Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."When combined with the "work for hire" doctrine (17 USC Section 201(b))
"In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."we would appear to be in a situation where government employees are creating images in the course of their employment and the copyright in those images would belong to the employer, namely the Federal Government. But since the Federal Government cannot acquire copyrights in that manner, the images would be in the public domain. (This could certainly be argued about, but it is a long-standing principle going back to Wheaton v. Peters, 33 U.S. 591 (1834) where the U.S. Supreme Court held that the written opinions of Federal judges were in the public domain because of reasoning analogous to that just explained.) This is not an accident either. These products of our government being in the public domain is a good thing. As taxpayers, we've usually already paid for them once, so there's no reason for the government to wrest additional licensing fees from us to use what we've already paid for!
I will consider the possibility that someone else who could hold the copyright is producing the images in a moment.
But first, if the images are in the public domain, and given that I refuse to enter into any contract with the Forest Service regarding the use of the volcano images, I think the only item above that they can actually enforce is the bizarre #4. I'm not sure what the legal theory would be, but it seems like (it could be) some sort of misrepresentation for me to capture their site within a frame on my own website. But actually, even then, if the outer frame had enough clear disclaimers, (and again depending on the legal theory) then they might not even be able to prevent that.
Finally, in at least the case of this post, even if someone other than government employees produces the images, and they do hold a valid copyright in them, my use of the thumbnail above is a fair use. The Ninth Circuit (in which both I and the volcano reside) held in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) that thumbnail images were a transformative fair use, especially in circumstances like these, where my use is non-commercial and my purpose is educational.
Poking around their website a little more (is that link allowed?!), I see that the Northwest Interpretive Association, a non-profit, donated the money for the VolcanoCam, while the VolcanoCam's webserver was a Government surplus Win 2000 box. It does look like the VolcanoCam and its webserver are operated by the Forest Service's employees, presumably during working hours, and it also sounds like the U.S. Geological Survey (that's a .gov site) studies the images. That is, it sounds like the images are produced 1) by government employees 2) while on government time 3) on a government-purchased webserver 4) for use on a government website and 5) for use, in part, by government researchers or to promote the park to tourists, which is also a government purpose. Only the camera itself was purchased with non-government funds. The factors in a work-for-hire case can be complex, but on balance I think I'd stand by the analysis above.
But in this litigious world, I would urge you that I am not a lawyer (yet) and I am certainly not your lawyer, and so the above is not legal advice. If you've got big plans for some VolcanoCam images, it sounds like the folks at the U.S. Forest Service have some questions for you. And while you're at it, consider donating some money to that non-profit (pdf), so they can keep the VolcanoCam going and add more features and locations. Indicate on your donation that you want VolcanoCam images to be freely available to the public. Money talks!
