Sometimes a court case comes along that really affects my life.  And sometimes a court case just makes me laugh and want to share it with the world.  JCW Investments, Inc. v. Novelty, Inc., 2007 WL 817673 (7th Cir., March 20, 2007) is entertaining but also illustrates an important copyright question: where is the line between an idea and expression?

“Pull My Finger Fred” is a doll manufactured by Tekky Toys.  Fred is characterized as “a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a tank top and blue pants” who makes farting sounds and tells jokes when his finger is squeezed.  In 2001 another company, Novelty, introduced a similar doll, “Fartman.”  Fred and Fartman both feature crooked smiles, balding heads with black hair, large protruding noses, blue pants and white tank tops.  Two of Fartman’s seven jokes are the same as Fred’s.  In 2002, Fred’s manufacturer filed a U.S. copyright infringement action against Novelty and the court determined that Novelty had infringed upon their copyright. Novelty appealed.

According to the court, the idea of a farting doll is not protected. However, Novelty took more than the idea; Novelty took the expression. According to the court, “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.”  

Artists should remember that ideas are generally free for all, while expression may be protected with U.S. Copyright. Use your best judgment when creating art inspired by an existing work.  Also, be careful about alleging copying when a work utilizes a similar idea. If Fartman had a blond mullet and wore flannel, the case might have been decided differently. Unfortunately, the line between an idea and expression is difficult to locate and thus must be decided on a case-by-case basis.