Is a toy that has handles on it and shoots things with rubber band mechanisms a "useful article" and thus not copyrightable? A divided Ninth Circut confirmed a finding of copyrightability over a spirited dissent in Lanard Toys Ltd v Novelty Inc, 2010 WL 1452527 (April 13, 2010).
At issue was Chinese knockoffs of popular American toys. Toys are copyrightable as "pictorial, graphic or sculptural works" 17 USC 101. But is a toy helicopter "useful" when it depicts something useful? The majority cited a long line of decisions protecting frivolous things like clown noses and toy objects which have no use other than to depict a useful object (but not be used for anything but to play with).
So "Shoot Copter" "Drop Copter" and the "Pull-N-Launch Play Set" that obviously copied the features of other toys were infringing articles within the meaning of the Copyright Act.
Growing up in a large family, my siblings and I always found toys that we could use to zap each other quite useful, perhaps not the use intended by the manufacturer.
It seems anomalous that the poor inventor who made the real thing gets only twenty years of protection, but the clown who made the silly imitative toy gets life plus forever protection for his "original work of authorship". Query whether such protection promotes the purposes of the Copyright Act.
Thursday, April 22, 2010
9th Circuit: Toys Not Useful and Thus Copyrightable - Spirited Dissent
Labels: 17 usc 101, copyright, copyright infringement, copyright law, sculpture, toys, useful articles
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.