Thursday, April 22, 2010

9th Circuit: Toys Not Useful and Thus Copyrightable - Spirited Dissent

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.

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