Air Let Out of Fartman Appeal

Yesterday, the Seventh Circuit issued its opinion in JCW Investments, Inc. v. Novelty, Inc., a/k/a the "Fartman" case. Here is a link to the opinion and to the oral argument. The opinion is by the outstanding Judge Diane Wood, who had on full display at oral argument her nuanced appreciation for the idea-expression dichotomy, and her quick, agile mind. (Judges Evans and Manion were on the panel too and added important points in what was a wonderful give and take among the panel and the lawyers). I encourage people to listen to the oral argument and to appreciate the real difficulties in line drawing. The close relationship between the questions at oral argument and their resolution in the opinion also shows how important it is to provide meaningful answers at oral argument.

Plaintiff's work was "Pull My Finger Fred." As described by Judge Wood: "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 figure 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.'"

As for defendant's work, she wrote: "Fartman could be Fred's twin." The district court ruled for plaintiff; the Seventh Circuit affirmed. Defendant's president Mr. Green admitted he saw and photographed plaintiff's work. The artist who drew defendant's work denied seeing plaintiff's work and testified she drew the work based on Mr. Green's directions. Despite the very close similarities between the parties' works, Defendant argued it only copied ideas, archetypes.

At its most basic, a prima facie case of infringement consists of two elements, copying and material appropriation of expression. Copying is just that; copying of anything, even ideas since it is the fact of copying that matters at that stage, not how much and of what. Judge Posner wrote in Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1169-1170 (7th Cir. 1997): "The issue of copying can be broken down into two subissues. The first is whether the alleged copier had access to the work that he is claimed to have copied; the second is whether, if so, he used his access to copy." There are good reasons for separating the analysis this way: as for copying, as Judge Posner points out, "access does not entail copying. An eyewitness might have seen the defendant buy the copyrighted work; this would be proof of access, but not copying." The separate requirement of access is also important. First, there is the common sense point that one cannot copy something you do not have access to. Second, independent creation is a cornerstone of copyright: two works may be identical, but this fact is irrelevant unless defendant copied, and defendant cannot copy without access.

Regrettably, courts sometimes elide over this last point by remarking, as Judge Posner did in Ty (quoted by Judge Wood in the Fartman case): "If, therefore, two works are so similar as to make it highly improbable that the later one is a copy of the earlier one, the issue of access need not be addressed separately, since if the later work was a copy its creator must have had access to the original." Judge Posner adds that the "inference of access, and hence of copying could be rebutted by proof that the creator of the later would could not have seen the earlier one ..."

Classically, though, the inference that arises is an inference of copying that springs into existence when plaintiff proves evidence of access and substantial similarity. The Ty, Inc. - Fartman approach inverts this by making similarities act as an inference of access which then does double duty as an inference of copying. By so doing, court relieve plaintiffs of their burden of proving both access and copying: the high degree of similarities are enough by themselves; that strikes a dagger through the heart of independent creation.

This is of course precisely what happens in striking similarity allegations, and it happens because despite all evidence showing there was neither access nor copying, plaintiffs attempt to raise an inference of both based solely on an expert's testimony that "not since the time of the Phoenicians have two works borne such similarities, similarities that could only arise through copying." An expert's opinion cannot though be based on an absence of supporting acts and surely cannot be contrary to them.

In Ty and the Fartman case, given the concession of both access and copying, one would think that the copying step of the infringement analysis could be conceded, and that one could move straight to the material appropriation stage. Alas this didn't happen, although I believe both courts' discussion of the issue is dicta and is probably meant to reflect nothing more than a commonsense observation that where a mass-produced work is at issue and the two works are virtually identical, one need not waste time on access. That's quite true, but the conceptual problem is that access can readily be found by the mere fact of a work being mass-produced: the requirement of access is not one of direct proof but may be established by a reasonable opportunity to have seen the work, something that existed in Ty and the Fartman case and then some.

On the merits, the court per Judge Wood found, and properly so, that the two works were substantially similar and rejected defendant's claim that it was only copying ideas: "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 elements are creative. But this ignores the fact that the details -- 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 look 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."

Brava, brava.