Given the often staid practice of law, it's hard to resist a fart joke particularly when it appears in the context of a well-written, yet smartly funny discussion of, among other things, copyright law penned by Judge Diane P. Wood of the Seventh Circuit.
The dispute in
JCW Investments, Inc. v. Novelty, Inc., No. 05-2498 (7th Cir., March 20, 2007) arose in the context of competing farting dolls. On the one hand was Pull My Finger Fred, described by Judge Wood as a "white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white top and blue pants." When you squeezed Fred's extended finger he, rather unsurprisingly given his name, farts and makes, according to the Seventh Circuit, "somewhat crude, somewhat funny statements" about his bodily noises. On the other hand was Fartman, described as 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." As with Fred, when you squeeze Fartman's extended finger, he emits both farts and jokes about those farts, two of which jokes were the same as those cracked by Fred.
But unfortunately for Fartman, his farts and jokes were no laughing matter for Tekky Toys, the manufacturer of Fred. Tekky Toys sued Fartman's maker, Novelty, Inc. for copyright infringement, trademark infringement, and unfair competition, eventually winning on all of the claims with an award of lost profits, punitive damages (under state unfair competition law) and more than $575,000 in attorneys' fees.
In affirming the judgment of the District Court, the Seventh Circuit dealt handily with Novelty's claim that the District Court had protected too much of Fred in the context of Tekky's copyright infringement claim, extending protection not only to the expression of the idea of Fred but also to the idea or common elements known as
scenes a faire, which are "incidents, characters or settings which are as a practical matter indispensable or at least standard, in the treatment of a given topic." The Seventh Circuit disagreed, concluding that it was not the idea of a "farting, crude man" that was protected but rather Tekky's particular embodiment of that concept in the form of Pull My Finger Fred.
It seems to me that Novelty had a tough row to hoe as its president apparently testified in deposition that when Novelty creates a new item, they "try to copy---or try to think of some relevant ideas" and further admitted that his idea for Fartman was based on Fred, whom he had seen in a showroom of a manufacturer of the Fred doll.
William Patry at The Patry Copyright Blog also has an interesting and thorough
discussion of Pull My Finger Fred vs. Fartman.
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