a rose by any other name…

or, a study on the idea/expression dicho­tomy in copy­right law as illus­trated through flat­u­lent dolls. The inter­est­ing decision in JCW Invest­ments v. Nov­elty, Inc. cen­ters around how copy­right can inhere in toy fart­ing dolls:

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. Fred’s cre­at­ors, Jamie Wirt and Geoff Bev­ing­ton, began work­ing on Fred in 1997, and had a fin­ished doll in 1999. They applied for a copy­right regis­tra­tion on Fred as a “plush toy with sound,” and received a cer­ti­fic­ate of copy­right on Feb­ru­ary 5, 2001; later, they assigned the cer­ti­fic­ate to Tekky. In the mean­time, Tekky sent out its first Fred dolls to dis­trib­ut­ors in 1999. By the time this case arose, in addi­tion to Fred, Tekky’s line of fart­ing plush toys had expan­ded to Pull My Fin­ger® Frankie (Fred’s blonde, motorcycle-riding cousin), Santa, Freddy Jr., Count Far­tula (purple, like the Count on Ses­ame Street), and Fat Bas­tard (char­ac­ter licensed from New Line Cinema’s“Austin Powers” movies), among oth­ers. By March 2004, Tekky had sold more than 400,000 fart­ing dolls.

400,000! Any­way, on to the actual law part of it. Basic­ally, another com­pany, Nov­elty, came along and developed a sim­ilar doll and the court found them offside:

It is not the idea of a fart­ing, crude man that is pro­tec­ted, but this par­tic­u­lar embod­i­ment of that concept. 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 arm-chair, and be wear­ing shorts rather than blue pants.

Well. Good to know that one can’t own the idea of a fart­ing, crude man — only the par­tic­u­lar expres­sion of a fart­ing, crude man.

There was of course also the trade­mark aspect to it:

The jury found Nov­elty liable for trade­mark infringe­ment because Nov­elty used the words “Pull My Fin­ger” to sell its fart­ing Santa dolls, and this use infringed Novelty’s mark for those words as related to plush dolls.

There you have it. “Pull My Fin­ger” is a trademark.

related:

1. web 2.0 & the law
2. being an employee and a (poten­tial) entrepreneur