Can You Prove a Copycat Has Violated a Copyright?
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Do you believe that someone has copied your designs? Legally, a copycat may not be necessarily guilty of copyright infringement. A recent case involving a comic book character and a movie character, both with hairdryers in hand, provides a valuable reminder of what is and what is not protected by copyright law.
It’s a battle over whether a comic book creator can protect his hairdryer-toting, terrorist-fighting figure from being copied by big-time Hollywood studios. Robert Cabell, an author, documentary filmmaker and illustrator, sued Sony Pictures, Columbia Pictures, Adam Sandler, Robert Smigel and Judd Apatow (S.D.N.Y. Docket No. 10 CV 2690), alleging You Don’t Mess With the Zohan (in which Sander plays a terrorist-fighting hair dresser) infringed his copyrights of his own creation of “Jayms Blonde,” a comic book character who similarly fights crime and wields an awfully hot hairdryer. The New York District Court (trial court) granted summary judgment against Cabell dismissing his copyright infringement claims. Last week, the Court of Appeals in New York (one level below the U.S. Supreme Court) affirmed the District Court’s decision.
In considering whether an infringement occurred, the court (because this was a summary judgment motion, the court reviewed the evidence; had this been a jury trial, the jury would have determined issues of fact) applies the “ordinary observer” test. The copyright owner must show that when viewed by the average observer under ordinary circumstances, the observer would recognize in the copied work protected portions of the plaintiff’s work, and believe that those protected elements in the copied work were taken from the protected work.
The court first considered the visual depictions. However, Cabell “declined to specify which Blonde images were infringed” and instead asserted that all of the Blonde images “are derivative of the seminal images of Jayms Blonde with the hair dryer pointed at the viewer” [which to movie lovers also summons the image of James Bond pointing his gun at the viewer in the opening of several of the 007 movies].
In response, the court stated that before applying the substantial similarity test, it had to separate the ideas (which are not protected by copyright law) from the expressions of ideas (which are protected by copyright law). The court ruled that pointing a blow dryer as if it were a gun is not a protected expression of an idea, but instead is merely an idea which is not subject to copyright protection.
As to the expression of Blonde (and Zohan) pointing the hair dryer as if it were a gun, the court found that Cabell did not allege that his depictions of Blonde were substantially similar to the depictions of Zohan. The court even contrasted the depictions of the hair dryers, finding significant differences (and, thus, no infringement even if it had been alleged, which it was not).
But Cabell claimed that the depiction of the two characters, “with bodies posed in a [similar] manner and their faces [bear] a demeanor … suggest[ing] that these characters are secret agents of some kind” was an infringement. Unfortunately for Cabell, the Court of Appeals has already ruled that a “fighting pose” is an idea that is not protected by copyright law.
Aside from the unprotected ideas, the court found no other substantial similarities (the court provided further analysis of how the characters were depicted in the works).
Some Ideas are Unprotectable
The court also rejected Cabell’s final argument, that Blonde was entitled to special protection as a comic book character. “While courts have found comic book characters are copyrightable, protection is limited to markedly similar characters.”
Accordingly, the court found that Cabell failed to identify sufficient similarities between Blonde and Zohan as to which copyright protection applied.
Cabell also claimed that the Zohan storyline infringed the Blonde storyline. Here, the court analyzed the two storylines (again distinguishing between ideas and expression) and found that to the extent there was any similarity, “they end with an unprotectable idea.”
The court also granted summary judgment against Cabell on his unfair competition claim (not part of copyright law, but rather a cause of action under New York law).
If you think that your designs have been copied, make sure you can prove copyright infringement. Although this copyright case did not involve the children’s industry directly, fashion and product design similarities are a common problem for many in the juvenile business. To protect your own designs, intellectual properties and business, it is a good investment to seek the advice of an attorney that specializes in the complexities of copyright law even before you may think you need it. That is one business decision in which it is good to be a copycat!
The Giggle Guide® welcomes Attorney Jeremy Richardson, of Phillips Nizer LLP, as a guest columnist.
About Jeremy D. Richardson
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Jeremy guides start-ups and entrepreneurs through protection of their intellectual property, negotiation of partnerships, and when necessary, the litigation of matters that cannot otherwise be resolved. He has argued before the Second Circuit Court of Appeals and has been admitted pro hac vice to practice in the California Superior Court.
About Phillips Nizer
Phillips Nizer LLP has been engaged in a wide-ranging practice of domestic and international law for over 80 years. Established in 1926 by Louis Phillips, former Assistant General Counsel to Paramount Motion Pictures, and Louis Nizer, considered one of the most outstanding trial lawyers of the twentieth century, the firm consists of lawyers who are well-respected leaders in their fields. Our bond with the fashion and apparel industries began in the 1940s, a relationship that continues to this day almost 60 years later. Our principal office is in New York City, with additional offices in Garden City, Long Island and Hackensack, New Jersey. For more information about Phillips Nizer LLP, please visit: http://www.phillipsnizer.com/
