User:Elcobbola/Stuffed Animals

Shortcut: COM:PLUSHIES

Soft sculptures are eligible for copyright protection. This Teddy Bear is in the public domain, however, by virtue of pre-1923 publication in the United States.

There has generally been confusion regarding stuffed animals (alternatively, "soft sculptures" or "plush toys") on the Commons. It is not infrequently argued, for example, that stuffed animals either 1) are not "art" or 2) are useful articles and therefore ineligible for copyright protection. These arguments, however, are fundamentally flawed and based on an incorrect, colloquial/lay understanding of the scope of copyright (a conflation of "art" with the actual scope) and the meaning of "useful article" (a conflation of "useful" with, perhaps, "instrumental" or "industrial"). This is demonstrated, for example, by:

• The U.S. Code's explicit inclusion of "three-dimensional works of fine, graphic, and applied art" (17 U.S.C. § 101);
• The U.S. Copyright Office's explicit inclusion of "toys" and "dolls" as categories on its Visual Arts (VA) registration form;
• Numerous stuffed animals, toys and dolls present in the U.S. Copyright Office Catalog of Copyright Entries; and
• United States case law.

This essay thus seeks to present the statutory and legal support for the copyright eligibility of stuffed animals and thus to identify the logical errors and misunderstandings that have led to contrary opinions. Further, because images on the Commons must be freely licensed in both the United States and their country of origin, the laws of the United States serve as a first "hurdle" for all images. Accordingly, as a matter of simplicity and practicality, this essay focuses exclusively on copyright law in the United States and eschews the laws of other jurisdictions.

Statutory background

Although the notion of copyright generally conjures thoughts of music, films, literature, and paintings, it is in actuality applicable to a larger variety of works. Indeed, United States copyright law defines the subject of copyright as follows:

“	Copyright protection subsists, [...] in original works of authorship fixed in any tangible medium of expression [...]	”
—17 U.S.C. § 102

From this definition, we see why even less obvious works -- such as stuffed animals, toys and dolls -- are potentially eligible for copyright. Indeed, stuffed animals are generally original, have authors (created by human beings), and are fixed in a tangible medium (fabric, cloth, etc.) As something of a confirmation, the statutory definition of "works of authorship" explicitly includes '“Pictorial, graphic, and sculptural works," or:

“	[T]wo-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects [...]	”
—17 U.S.C. § 101 (emphasis added)

The issue of useful articles

The aforementioned scope of copyright is a quite broad statement that would seem to encompass any man made object. However, because such industrial objects were not intended to receive copyright protection, a provision was added to exclude industrial objects on the basis of their being “useful articles:”

“	[A]n object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures.	”
—17 U.S.C. § 101 via U.S. Copyright Office

The useful article exemption may suggest that toys such as stuffed animals are useful articles. Indeed, stuffed animals can be played with and enjoyed, such entertainment perhaps "an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." This interpretation, however, has been rejected by the courts. The issue was specifically raised in Gay Toys, which held that "a toy airplane is to be played with and enjoyed, but a painting of an airplane, which is copyrightable, is to be looked at and enjoyed. Other than the portrayal of a real airplane, a toy airplane, like a painting, has no intrinsic utilitarian function." (Gay Toys, Inc. v. Buddy L Corporation, 703 F.2d 970 (6th Cir. 1983)) This finding is consistent with earlier cases ("it is no longer subject to dispute that statues or models of animals or dolls are entitled to copyright protection" (Blazon, Inc. v. DeLuxe Game Corp., 268 F. Supp. 416 (S.D.N.Y. 1965))), and cases specific to stuffed animals:

“	There is no question but that stuffed toy animals are entitled to copyright protection.	”
—R. Dakin & Co. v. A & L Novelty Co., Inc., 444 F. Supp. 1080, 1083-84 (E.D.N.Y. 1978))

“	Because these animal mannequins were designed to portray the appearance of animals through artistic features introduced by the author in their creation, we hold that they are not "useful articles" as defined in the Copyright Act and that therefore copyright protection is available for them.	”
—Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488 (1995)

Stuffed animals--whether as plush playthings or more literally as taxidermy--are not useful articles.

Real world examples

U.S. Copyright Office

Forms

Certain official U.S. Copyright Office forms explicitly reference "toys" and "dolls" as examples of a "pictorial, graphic, or sculptural work." It is not expected that the U.S. Copyright Office would use "toys" and "dolls" as examples if such works were ineligible for copyright protection. Examples are summarized as follows:

• Visual Arts registration form: Form VA
• Adjunct Application for Copyright Registration for a Group of Contributions to Periodicals: Form GR/CP

Catalog of Copyright Entries

The U.S. Copyright Office Catalog of Copyright Entries contains numerous entries related to stuffed animals. The Copyright Office routinely rejects registration of items ineligible for copyright, such as clothing. Implicitly, then, stuffed animal registrations have passed this preliminary scrutiny. Samples from the U.S. Copyright Office Catalog of Copyright Entries include:

• R. Dakin & Co.
  • Frogaboo (stuffed toy animal - frog) Gp 74730 / August 25, 1971
  • Hippoboo (stuffed toy animal - hippo) Gp 74731 / August 25, 1971
  • Hilda Hippo (stuffed toy animal - hippo) Gp 83582 / February 23, 1973
  • Fishaboo (stuffed toy animal - fish) Gp 74732 / August 25, 1971
  • Gabby Gibbon (stuffed toy animal - monkey) Gp 98420 / April 29, 1975

Case Law

R. Dakin & Co. v. A & L Novelty Co.

R. Dakin & Co. v. A & L Novelty Co., Inc., 444 F. Supp. 1080 (E.D.N.Y. 1978) set forth:

• "Between 1968 and 1974, Dakin manufactured and obtained copyrights for the five stuffed animals that are the subjects of this lawsuit."
• "In March of 1974, Dakin obtained a copyright for and began marketing Gabby Gibbon, a stuffed toy gibbon."
• "Dakin's ownership of the copyrights in issue is not in dispute and there is no question but that stuffed toy animals are entitled to copyright protection." (citing Blazon, Inc. v. DeLuxe Game Corp., 268 F. Supp. 416 (S.D.N.Y. 1965)).

Dollcraft Industries, Ltd. v. Well-Made Toy Mfg.

Dollcraft Industries, Ltd. v. Well-Made Toy Mfg., 479 F. Supp. 1105 (E.D.N.Y. 1978) set forth:

• "Three small stuffed toy lambs, one medium stuffed toy bunny and one rather large stuffed toy bunny form the foundation upon which this suit is built."
• "In March of 1978, a copyright registration for each lamb in this assortment was issued. Each certificate sets forth November 12, 1974 as the first publication date for each lamb. [...] A certificate of copyright registration on this large crouching Honey Bunny was sought by and subsequently issued to Dollcraft on March 13, 1978. [...] A certificate of registration was issued to plaintiff on this bunny on March 13, 1978. According to said certificate, this sitting Honey Bunny was first published on December 5, 1973."

• "[T]he plaintiff's copyrights are valid."

Gay Toys, Inc. v. Buddy L Corp.

Gay Toys, Inc. v. Buddy L Corp., 703 F. 2d 970 (6th Cir. 1983) found the following:

• "[T]he statutory definition of 'useful article' suggests that toys are copyrightable. To be a 'useful article,' the item must have 'an intrinsic utilitarian function that is not merely to portray the appearance of the article.' And a toy airplane is merely a model which portrays a real airplane. To be sure, a toy airplane is to be played with and enjoyed, but a painting of an airplane, which is copyrightable, is to be looked at and enjoyed. Other than the portrayal of a real airplane, a toy airplane, like a painting, has no intrinsic utilitarian function."
• "This interpretation is supported by legislative history as well. The intention of Congress was to exclude from copyright protection industrial products such as automobiles, food processors, and television sets. House Report at 55, 1976 U.S.Code Cong. & Ad.News at 5668. The function of toys is much more similar to that of works of art than it is to the 'intrinsic utilitarian function' of industrial products."
• "[W]orks of 'applied art' encompass all original pictorial, graphic, and sculptural works that are intended to be or have been embodied in useful articles, regardless of factors such as mass production, commercial exploitation, and the potential availability of design patent protection."

Kamar International Inc v. Russ Berrie and Co.

Kamar International Inc v. Russ Berrie and Co., 657 F. 2d 1059 (9th Cir. 1981) set forth:

• "Both Kamar, Inc. and Russ Berrie, Co. sell stuffed toy animals. Kamar's toys are copyrighted as 'soft sculptures' and are manufactured by Korean subcontractors."
• "Berrie's stuffed animals are also copyrighted, but Berrie purchases them directly from Korean manufacturers"

Other issues

Originality

A not uncommon argument is that the designs of stuffed animals are timeless, folklore or "ancient" designs and concepts long since common property in the public domain. The argument is not dissimilar to those often offered in relation to Santa Claus and snow men. Depictions of Santa generally involve a heavy set, bearded and bespectacled man in red suit with white fringe, black boots, and the like. Snow men are generally three white orbs adorned with black buttons and eyes and perhaps an orange (carrot) nose. Similarly, one can readily conjure an image of the "quintessential" Teddy Bear. The argument, then, is that any specific work that adopts these general characteristics must not be sufficiently original. This position, however, is fundamentally flawed and misunderstands or ignores the meaning and intent of originality.

Despite a general Teddy Bear aesthetic, these stuffed animals are recognizably distinct, with non trivial variation from one another.

Originality is “the bedrock principle of copyright” and “the very premise of copyright law.” (Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991)) "'Original' in reference to a copyright work means that the particular work 'owes its origin' to the 'author.' No large measure of novelty is required." (Kamar International Inc v. Russ Berrie and Co., 657 F. 2d 1059 (9th Cir. 1981)) "All that is needed to satisfy both the Constitution [of the United States of America] and the statute is that the 'author' contributed something more than a 'merely trivial' variation, something recognizably 'his own.' Originality in this context 'means little more than a prohibition of actual copying.' No matter how poor artistically the 'author's' addition, it is enough if it be his own." (Alfred Bell Co v. Catalda Fine Arts, 191 F. 2d 99 (2nd Cir. 1951))

We observe, therefore, that originality is a prohibition on copying. Author inputs such as dimension, form, and proportion of anatomical features are all examples of aspects that may be "recognizably '[the author's] own'". Consider the two bears to the right; despite a similar design language and adherence to the general category of Teddy Bears, the bears are visually distinct. The rightmost bear, "on the war path" is visibly more aggressive: general facial expression; pointed, sharp snout lacking black nose; short, dark fur; swept back ears; stouter, more erect stance; etc. Indeed, contributions to "pose, posture, and facial expression," particularly in the aggregate, are examples of such exercised discretion. (Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 607 (1st Cir.1988)) As a corollary, consider that the replica Statue of Liberty in Las Vegas, Nevada is sufficiently original relative to the actual Statue of Liberty in New York, New York (due to differences in silhouette, face and crown) to have its own copyright (Registration Nos. VAu 1-090-876 and VA 1-882-070). Indeed, the Court of Federal Claims found "[the Las Vegas] statue evokes a softer and more feminine appeal. The eyes are different, the jaw line is less massive and the whole face is more rounded."

Facsimiles of real animals

Another common argument is that stuffed animals, by virtue of being based on the appearance of real animals, are devoid of sufficient originality (not dissimilar to arguments made regarding scale models). Courts, however, have determined that a stuffed animal need not even differ from a precise depiction of a real life animal. Indeed, "[t]he mere fact that ... [a stuffed toy chimp] is based on a live model does not deprive [its author] ... of the necessary amount of originality" (Rushton v. Vitale, 218 F.2d 434, 436 (2nd Cir. 1955)) and "the mere fact that plaintiff used a matter in the public domain does not in and of itself preclude a finding of originality, since plaintiff may have added unique features to the matter so as to render it copyrightable." (R. Dakin & Co. v. A & L Novelty Co., Inc., 444 F. Supp. 1080, 1083-84 (E.D.N.Y. 1978))