The Sweet Smell of Intellectual Property

The 7th Circuit just handed down a decision that is certain to make its way into the annals of my copyright class materials (pun intended). JCW Investments v. Novelty, Inc, ___ F.3d ___ (7th Cir. 2007).

Some of the best excerpts from the opinion:

Meet Pull My Finger® Fred. He is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fred is a plush doll and when one squeezes Fred’s extended finger on his right hand, he farts. He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as “Did somebody step on a duck?” or “Silent but deadly.”

Fartman could be Fred’s twin. Fartman, also a plush doll, is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fartman (as his name suggests) also farts when one squeezes his extended finger; he too cracks jokes about the bodily function. Two of Fartman’s seven jokes are the same as two of the 10 spoken by Fred. Needless to say, Tekky Toys, which manufactures Fred, was not happy when Novelty, Inc., began producing Fartman, nor about Novelty’s production of a farting Santa doll sold under the name Pull-My-Finger Santa.

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative. Tekky Toys, an Illinois corporation, designs and sells a whole line of them. Fred was just the beginning.

Novelty could have created another plush doll of a middle-aged farting man that would seem nothing like Fred. He could, for example, have a blond mullet and wear flannel, have a nose that is drawn on rather than protruding substantially from the rest of the head, be standing rather than ensconced in an armchair, and be wearing shorts rather than blue pants. To see how easy this would be, one need look no further than Tekky’s Frankie doll, which is also a plush doll, but differs in numerous details: he is not sitting, and he has blond hair, a tattoo, and a red-and-white striped tank. Frankie is not a copy of Fred. Fartman is.

The case materials are available here:

1. JCW Invs., Inc. v. Novelty, Inc., 289 F. Supp. 2d 1023 (N.D. Ill. 2003) (Fartman Doll Trial Decision).
2. JCW Investments v. Novelty, Inc, ___ F.3d ___ (7th Cir. 2007). (The Fartman Appeal – Edited for length. If you would like the entire opinion, it is available here).

William Patry has a good discussion of the case available here.