Seventh Circuit Finds Particular Expression Of Farting Plush Doll Protected By Copyright And Other Party’s Copying Of Numerous Features Is Thus Copyright Infringement
IP Legal Lounge:
We’ve all seen it on Beavis & Butt-Head, South Park, or The Simpsons. Some of us even participated in the childish prank in our more juvenile days. Yet how many of us ever thought that the phrase "pull my finger" would one day become the topic of a United States Court of Appeals case? This is precisely what happened when a manufacturer of a farting plush doll took issue with another company’s production of a similar looking doll. As the Seventh Circuit eloquently put it, "Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative."
The facts are as follows. Plaintiff Tekky Toys sells a whole line of farting dolls. Around 1999 it finished a doll that it named "Pull My Finger Fred." This was a white, middle-aged, overweight male with black hair and a receding hairline, who wore blue pants and a tank top. He had an extended finger on his right hand that, when squeezed, created a farting sound. Fred also made crude, funny statements, such as "Did somebody step on a duck?" or "Silent but deadly." The copyright in Fred was registered in February 2001. In early 2001, the president of defendant, Novelty, Inc. spotted a Fred doll in Hong Kong and subsequently described Fred to Novelty’s art director who prepared a drawing based on the description. This doll became known as Fartman, and was released in November 2001. When Tekky learned of Fartman in 2002, it filed suit.
The trial court ruled for Tekky on summary judgment as to the issue of liability, finding that Novelty had infringed its copyright. A jury subsequently found for Tekky on various other claims and awarded damages in the amount of $116,000 for the copyright infringement claim. The court also granted Tekky’s attorneys’ fees petition in the amount of $575,099.82. Novelty appealed.
With respect to the copyright claim, the Seventh Circuit Court of Appeals disagreed with Novelty’s contention that the lower court protected too much of Tekky’s doll - not only the expression of the toy but the idea of a farting doll itself. The Court found that the two dolls were substantially similar, since the combination of numerous features on both dolls would lead an objective observer to believe they were the same. Novelty’s argument that its doll was simply based on the "idea" of "a typical man wearing jeans and a T-shirt in a chair doing the ‘pull my finger’ joke" did not impress the Court. The various features that Tekky combined to create Fred were the expression of that idea, and were thus protected. As the Court pointed out, Novelty could have created a plush doll of a middle-aged farting man (the idea) that looked nothing like Fred and did not include elements common to both dolls. The Court, thus, affirmed the district court’s summary judgment ruling for Tekky on the issue of copyright infringement liability.
The Seventh Circuit ended up affirming the district court’s ruling on all grounds, including trademark infringement and attorneys’ fees, and the opinion, found here, is worth reading.
JCW Investments, Inc. v. Novelty, Inc., 2007 WL 817673 (7th Cir., March 20, 2007).