The last couple of days have been busy in the world of copyright.  The Stanford Center for Internet and Society won its First Amendment challenge of the URAA’s restoration of copyrights in public domain works; the USTR released a summary of its ACTA negotiations; Ben Sheffner reported on Howard Berman’s (D-CA-28) frustrations at the lack of an IP Czar appointment; and the Library of Congress released a report on the use of unpublished sound recordings in libraries.  These stories all merit a closer look — and I’d like to get back to them later this week — but today let’s talk about frogs.  Everyone likes frogs.

Coquico, Inc. v. Rodriguez-Miranda et al, 2009 WL 903954 (1st Cir. 2009) (Puerto Rico)

Judge  Bruce M. Selya (Torruella/Leval joined) issued an order today in an infringement action that’s pretty darn funny, at least as far as appellate decisions go.  The  introduction of the facts speaks for itself:

A famous fairy tale, of ancient vintage, tells of an ugly frog who, when befriended by a beautiful damsel, turns into a handsome prince, marries his rescuer, and (presumably) lives happily ever after. The coquí is a tree frog indigenous to Puerto Rico. Plaintiff-appellee Coquico, Inc. has not yet managed to turn the coquí into an imperial presence. It has, however, fashioned a popular stuffed-animal rendering of the coquí and, thus, turned the frog into dollars.

Coquico secured a copyright on its stuffed animal to protect this amphibian revenue source. When the defendants, [Defendants] began selling a competing coquí, Coquico sued for, among other things, copyright infringement. The district court preliminarily enjoined the defendants from infringing Coquico’s copyright.  [citation omitted]

Scènes à faire and merger

The Defendants appealed the preliminary injunction arguing that Coquico was unlikely to succeed on its claim because the district court failed to restrict its infringement analysis to the elements of the original work that warrant exclusive rights.

A court normally should commence its evaluation of this type of defense by dissecting the copyrighted work and separating its original expressive elements from its unprotected content. In performing this dissection, the court should not lose sight of the forest for the trees; that is, it should take pains not to focus too intently on particular unprotected elements at the expense of a work’s overall protected expression. [citation omitted, emphasis added]

* * * * *

There is no evidence in the record demonstrating that Común mirrors any particular coquí in nature. What evidence there is about the coquí in nature suggests the contrary: the coquí común exists in myriad shades of beige, brown, and tan; coquíes can and do strike a wide variety of poses; coquíes do not have embedded flags; a stuffed-animal rendering of a coquí need not have Común’s precise dimensions (which depart dramatically from those of coquíes in nature); and, finally, the actual coquí has no stitching (and, relatedly, many different stitching patterns can be used to construct stuffed animals). To cinch the matter, the record is replete with stuffed-animal depictions of coquíes that bear little resemblance to Común.

No substantial similarity

Secondly, the defendants argued that  the shared qualities of the two plush toys didn’t rise to the level of substantial similarity because the work only merited a thin copyright.

[T]he defendants contend that Coquico’s copyright is not very robust because Común purports to mimic a wild animal (and, thus, an object in the public domain). This contention represents a triumph of hope over reason. The simple truth is that even a realistic reproduction of a natural phenomenon may enjoy copyright protection.

The determining factors are whether the work possesses original expressive elements and whether the alleged infringer has copied those elements, as opposed to gleaning them from the phenomenon in nature. The elements of original expression that we have catalogued above show beyond hope of contradiction that this is a case in which art imitates nature to a degree-but without forfeiting copyright protection. [citation omitted]

The First Circuit affirmed, finding that the district court was warranted in deciding that Coquico had a high probability of prevailing on the substantial similarity analysis, and the infringement action.