Read this entry and the linked case materials.
Copyright Law
Law 6102 – Professor Randazza’s Copyright Law Course – Barry University School of Law – Fall 2007
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October 17, 2007 at 10:43 am |
Was there really any question in this case? I mean is this guy really that stupid to think he could win the “inspired by” argument? Despite the subject matter of the toy, it is clear that the court was not having to stretch too far to reach the conclusion it did. Had there been more substantial differences I think the court may have taken a little longer to decide. In this case, I have to think that the near exact copying that clearly took place, despite protestations to the contrary, obviated any need to discuss much else. Bottom line: you have to be more creative.
Mark K. McCulloch
October 17, 2007 at 3:13 pm |
The Court should take the opportunity to rethink copyright protection for “useful arts.” The Framers intent was not to extend copyright protection to every conceivable form of expression. Ideas and expression should be protected but like fundamental rights, it should not be absolute. So, maybe, there should be a presumption of protection but the protection can be rebutted by demonstrating the expression does not promote progress and/or it is for an “unuseful art.” The Court has decided this issue and found “useful art” does not act as a limit…but the Court has turned on itself before…
The Fartman case demonstrates a time when summary judgment is proper. While many have an aversion to allowing a judge to decide whether the subjective “substantially similar” test is satisfied, it appears that this case is seminal. Even when viewing the fact in the light most favorable to the non moving party, Fartman and Fred are substantially similar. Substantially similar is a fact intensive inquiry. The non moving party receives the benefit of the facts. Therefore, if a judge is able to determine, in light of this standard of review, that the items are copied…it probably was. The description appears to be without question that Novelty stole Tekky’s expression.
The scenes a faire argument appears to be sanctionable. The lawyer who drafted the brief describing this argument did not keep a straight face. Unlike stories of war hereos with the backdrop of WWII, s middle aged man sitting in an armchair expelling gas is not a scenes a faire. The Court does a good job of dismissing the idea with an easy description of a version that would be independent of the first. A version that any reasonable person could differentiate.
The case stands as a testiment to the underlying problem with copyright law. The president of Novelty admits that their business model is to copy existing ideas and forms of expression. Further, Novelty admits to access, photographing, and creating copies of items viewed at trade shows. Essentially Novelty is in the business of stealing. The case, in layman’s terms, would read: Yes I stole the idea, so what? This concept appears illogical in the realm of the law as a whole.