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If it Looks Like a Duck, Quacks Like a Duck…

by Stephen Carlisle

A recent case involving competing duck shaped pool floats 1 highlights one of the basic tenets of copyright law that many non-lawyers find hard to understand: the idea-expression dichotomy. It stands for the proposition that the idea itself is not capable of copyright. Indeed, 17 USC 102(b) says this very plainly. What gets the copyright is HOW the idea is expressed, or as I frequently explained to students, “it is not what you said but how you said it.”

The Court leads off its opinion with the observation that “[a]s established at trial, ducks in nature are often yellow and usually have wings, bills, and tails.” 2 It would be hard to miss the weary tone of the Court in having to deal with this dispute.

Plaintiff, Great American Duck Races, first got into business creating charity “duck race” events featuring a small rubber duck wearing sunglasses. 3 Plaintiff’s duck is indeed very similar to Ernie of Sesame Street’s beloved “Rubber Duckie,” 4 a fact that is not wasted on the Court who mentions it several times. The main difference is that Plaintiff’s duck wears sunglasses.

Later, due to the success of the duck races, Plaintiff manufactured a much larger version of their duck to serve as a pool float capable of holding several people, which proved to be very successful. 5

Defendants, put as politely as possible, are knock-off artists.

“In practice, it was clear that [Defendant] and his companies would identify successful products on Amazon and then make slightly different versions of those products without apparent concern about possible intellectual property violations. That design process was described in detail at trial…In late 2015 or early 2016, [Defendant] decided [it] should manufacture “novelty pool floats.” (citation omitted) [Defendant] looked at the available pool floats and discovered four duck pool floats sold by four different companies. (citation omitted) [Defendant] provided the other companies’ products to an [employee] and instructed [them] to “create the design of a pool float in the form of a yellow duck with sunglasses [but] make it different from the yellow duck pool floats” already on the market. (citation omitted) [The employee] designed the new pool float and [Defendants] manufactured its own duck-wearing-sunglasses pool float. In other words, [the employee] had the [Plaintiff’s] Duck when designing [Defendant’s] duck and, to some extent, modeled [Defendant’s] duck after the [Plaintiff’s] Duck.” 6

Normally, this would be the end of the case. But as the Court noted in its opening line, when you are modeling an artistic work after a well-known creature already found in nature, you are hemmed in by features that must be included in order to recognize the work as a duck. So, once you add to the fact that a “duck wearing sunglasses” is an unprotectable idea, the available variations on this idea are not many.

(It would be truly helpful to have photographs of the “dueling ducks,” but unfortunately WestLaw is choosing not to display them. You’ll have to wait until the regular opinion comes out.)

As the Court observes: “To prove unlawful appropriation…the similarities between the two works must be ‘substantial’ and they must involve protected elements of the plaintiff’s work. (citation omitted). The key question always is: Are the works substantially similar beyond the fact that they depict the same idea?” (citation omitted) 7

“In the present case, [Plaintiff’s] copyright cannot prevent others from depicting yellow ducks, with a bill, wings, a tail, and a crest on the head. All of those attributes are found on ducks in nature. Moreover, the general design and coloring of the duck has become a “stock or standard feature. (citation omitted) As noted earlier, the [Plaintiff’s] duck resembles the Rubber Duckie from Sesame Street and many other examples. Therefore, there are very few protectable elements in the [Plaintiff’s] Duck. The parties have focused on the addition of sunglasses as the crucial protectable element. And the Court agrees that the sunglasses are the key protectable element of the [Plaintiff’s] Duck. But even there, [Plaintiff’s] copyright provides no protection to the idea of a duck float wearing sunglasses. Rather, [Plaintiff’s] copyright only protects the particular expression of that idea… (citation omitted) That is, [Plaintiff] is entitled to protection only for the way it expressed the idea of a duck wearing sunglasses.” 8

The Court reasons as follows:

“When confronted with the two ducks, and focusing on the sunglasses, there are a few striking differences. The sunglasses on the [Plaintiff’s] Duck consist of a double bridge, are solid black, and most importantly are separately inflatable. The fact that the sunglasses are inflatable make the sunglasses a very prominent feature of the [Plaintiff’s] Duck. By contrast, the sunglasses on the [Defendant’s] duck have a single bridge, are not solid black, and are merely painted on the duck’s head. An ‘ordinary observer’ confronted with the two works and focusing on the sunglasses would not be ‘disposed to overlook’ these differences. (citation omitted) While the [Plaintiff’s] Duck and [Defendant’s] duck undoubtedly share the general idea or concept of a duck wearing sunglasses, [Plaintiff] ‘cannot claim an exclusive right to ideas or concepts at that level of generality.’” 9

And finally, the Court rules:

“The parties’ ducks are very different when compared with any care. The [Plaintiff’s] Duck has a red bill that is open. [Defendant’s] duck has an orange bill that is closed. The [Plaintiff’s] Duck is a flat float while [Defendant’s] duck is a ring float. Finally, the [Plaintiff’s] Duck’s sunglasses are all black and exceptionally prominent. The [Defendant’s] duck’s sunglasses are only partially black and not especially prominent. In short, the ‘total concept and feel’ of the two ducks preclude a finding of liability on the copyright claim.” 10

You may get the impression the Court is splitting hairs here, or at least a few duck feathers.

But the take home point is that Plaintiff’s design was not particularly original to begin with. And once you combine that with the fact that ducks occurs in nature, and the only part that is “not a duck,” is the sunglasses, your level of protection as a copyright owner is indeed going to be very thin.

Notes:

  1. Great American Duck Races Incorporated v. Kangaroo Manufacturing Incorporated, et al. 2019 WL 3238460
  2. Id. at 1
  3. Id.
  4. Id.
  5. Id. at 1-2
  6. Id. at 2
  7. Id. at 4
  8. Id. at 4-5
  9. Id. at 5
  10. Id.

The post If it Looks Like a Duck, Quacks Like a Duck… appeared first on Office of Copyright.

A portrait of Stephen Carlisle

Stephen Carlisle, J.D.

Stephen is the NSU Copyright Officer. His function is to teach and to provide guidance and advice to the NSU community about the rights and responsibilities inherent in the use of copyrighted material, particularly in the sometimes unclear area of "fair use."

Copyright © 2019 NSU Office of Copyright, All rights reserved.


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