« Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP) | Main | Ind. Courts - State Court Administration seeks Employment Law Staff Attorney »

Tuesday, March 20, 2007

Ind. Decisions - Interesting (make that entertaining) 7th Circuit opinion out of ND Illinois [Updated]

The case is JCW INVESTMENTS, INC., d/b/a Tekky Toys, Plaintiff-Appellee v. NOVELTY, INC.. Judge Diane P. Wood writes:

Meet Pull My Finger® Fred. He is 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. Fred is a plush doll and when one squeezes Fred’s extended finger on his right hand, he farts. He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as “Did somebody step on a duck?” or “Silent but deadly.”

Fartman could be Fred’s twin. Fartman, also a plush doll, is 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. Fartman (as his name suggests) also farts when one squeezes his extended finger; he too cracks jokes about the bodily function. Two of Fartman’s seven jokes are the same as two of the 10 spoken by Fred. Needless to say, Tekky Toys, which manufactures Fred, was not happy when Novelty, Inc., began producing Fartman, nor about Novelty’s production of a farting Santa doll sold under the name Pull-My- Finger Santa.

Tekky sued for copyright infringement, trademark infringement, and unfair competition and eventually won on all claims. The district court awarded $116,000 based on lost profits resulting from the copyright infringement, $125,000 in lost profits attributable to trademark infringement, and $50,000 in punitive damages based on state unfair competition law. The district court then awarded Tekky $575,099.82 in attorneys’ fees. On appeal, Novelty offers a number of arguments for why it should not be held liable for copyright infringement, argues that Illinois’s punitive damages remedy for unfair competition is preempted by federal law, and contends that the attorneys’ fees awarded by the district court should have been capped according to Tekky’s contingent-fee arrangement with its attorneys. For the reasons set forth below, we affirm.

I. 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. * * *

Novelty wants us to take the entity that is Fred, subtract each element that it contends is common, and then consider whether Novelty copied whatever leftover components are creative. But this ignores the fact that the details—such as the appearance of Fred’s face or even his chair—represent creative expression. 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 armchair, and be wearing shorts rather than blue pants. To see how easy this would be, one need look no further than Tekky’s Frankie doll, which is also a plush doll, but differs in numerous details: he is not sitting, and he has blond hair, a tattoo, and a red-and-white striped tank. Frankie is not a copy of Fred. Fartman is. We have no trouble concluding that the district court properly granted partial summary judgment to Tekky on the issue of liability for copyright infringement.

[More] A reader writes:
As an adult male that still harbors an inner Beavis and Butthead, this was kind of fun. And perhaps Judge Wood even has a bit of the Beavis.

Here is a link to the actual doll: http://www.baronbob.com/pullmyfingerfred.htm

Really, I hesitate to link to this site, but ....

[Still More] Attorney David M. Hooper writes: "Why couldn’t THIS case have been assigned to Posner? Now THAT would have been a read!"

True, but I think the decision benefited from a woman's sensibilities. Judge Wood was, after all, surprised to learn that there is a niche market for farting dolls.

Posted by Marcia Oddi on March 20, 2007 12:14 PM
Posted to Ind. (7th Cir.) Decisions