United States: Thin Copyrights - Protected But Not Infringed

Blehm v. Jacobs, 10th Cir., No. 11-1479, December 27, 2012 

Some appellate decisions are worth examining because they plow new ground. Others serve to explain the ground that was plowed. This decision – dealing with substantial similarity (or lack thereof) between two sets of stick figures – is among the latter.

The Supreme Court has familiarized us with the concept of "thin" copyrights – the thinnest of all copyrights (or works that fail to qualify for copyright) belongs to the disappearing genus of printed "White Page" telephone directories where the ordering of a compilation is predetermined by such essential, non-original parameters as alphabetically listing all names in a given geographic area. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Some "modicum" of original and creative authorship is required. Of course, while some copyrights may be "thin," they are not necessarily "anorexic," as the Second Circuit put it. See the Second Circuit's explanation in Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc., 945 F. 2d 509, 514 (2nd Cir. 1991) (finding Yellow Pages in question to be copyrightable).

Compilations may appear to evince a clear division between protected and unprotected works while, in the case of stick figures, the line (pardon the pun) may be harder to draw. In fact, the Blog title is somewhat of a misnomer. While the Trial Court in Blehm described the stick figure copyrights as "thin," the 10th Circuit was clearly reluctant to apply this label to works of pictorial authorship where expression and idea are much more difficult to discern. As stated by the 10th Circuit, "Even assuming the distinction between 'broad' and 'thin' protection is correct, Mr. Blehm's works would not necessarily fall in the 'thin' protection category." (Blehm at page 18 – all citations are to the slip opinion attached to this article).

This particular case entailed a conflict between two sets of stick figures, the "Penman" of the plaintiff and the "Jake" figures of the defendant. Both were what most people would commonly call stick figures. It was, thus, necessary for the Court, on appeal from summary judgment favoring the defendant, to assess what copyrightable expression could be found in Penman and then determine whether Jake appropriated any of these creative elements.

The Court generally observed that the plaintiff, Mr. Blehm, could claim no copyright over the idea of a cartoon figure holding a birthday cake, catching a Frisbee, skateboarding or taking part in other everyday activities. Likewise, infringement could not be predicated on Penman and Jake sharing common anatomical features such as arms, legs, faces and fingers or in common poses such as reclining while bathing or lounging in an inner tube. What then was protected? "The Penmen at first glance might be considered simple stick figures, but they are more nuanced than a child's rudimentary doodling." Blehm at 18-19. The Court found significant that Penman always had a half-rounded smile taking up a substantial portion of the face with all other facial features entirely absent. The Court also described, and found protected expression in, the rules which guided Mr. Blehm in drawing the Penman images: "The figure's head might be perceived as slightly disproportional to the body. Its arms and legs are too thin, long, and disproportionate to the torso, which is relatively short. Mr. Blehm also chose to give the Penmen four fingers -- each about as thick as their arms and legs -- on each hand, as well as feet that are disproportionately long and thick compared with the rest of the body. Thus, each Penman reflects the stylistic choices Mr. Blehm has made." Blehm at 19.

The Court then went on to compare in detail two sets of Penman/Jake images for substantial similarity, namely, the Peace Sign images and the Frisbee images. The Court expressly declined to compare substantial similarity between the underlying ideas inherent in the images but only the protected expression. In each instance, the Court explained why the Jake images were far from infringing anything at all. For example, regarding the Peace Sign images, "Jake's head is very large compared with the body, while the Penman's head is relatively proportional. The Penman's arms and legs are long and disproportionate to its truncated torso. Jake, on the other hand, has more proportional limbs compared with his torso. The figures' feet are distinctly different: the Penman's are thick, long, and roll-shaped, but Jakes are shorter and triangular." Blehm at 21-22. "We conclude that no reasonable juror could determine that the Jake figure is substantially similar to the protected expressive (emphasis in original) choices Mr. Blehm used for the Penman figure." Blehm at 23. In short, the Court appeared to believe that the plaintiff was grasping at straws ... or should we say "sticks"?

Why then this Blog about an unremarkable decision in which anyone but the plaintiff apparently could foresee the outcome? First, in an internet age, many minimal works have allegedly been infringed or have been alleged to infringe. How do we determine where a court will draw the line between expression and idea? How can we even guess or begin to guess? Here we have the 10th Circuit's courteous discussion of dissimilarities between two sets of drawings in which neither set would likely infringe on the other. Second, and most importantly, the Court, in this case, had the eminent wisdom to not only describe these significant, non-infringing differences, but also to include the complete comparison chart comprising sixty-seven sets of paired images for which infringement was alleged. The readers can, as is often not the case, now judge for themselves whether a thin work is protected and, if so, whether an infringement action is meritorious for filing or defending. It has often been said, "You can never be too thin or too rich." The former obviously no longer applies to copyrights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
13 Nov 2018, Other, Los Angeles, United States

Public concern about privacy, data security and data sharing is surging, and it is leading to changes in the law and the way we do business

15 Nov 2018, Speaking Engagement, San Francisco, United States

EMPOWERED WOMEN MAKING A DIFFERENCE: Give back to your community and change a life with Sheppard Mullin’s Women Lawyers Group

15 Nov 2018, Other, San Diego, United States

The University of San Diego's Center for Cyber Security Engineering and Technology will host this upcoming Symposium in Cyber Law, Risk and Policy to be held on the beautiful USD campus.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions