idea/expression distinction saves Toyota ad from infringement claim

Croak v. Saatchi & Saatchi, North America, Inc., No. 15
Civ. 7201 (S.D.N.Y. Mar. 31, 2016)
 
James Croak created a sculpture, “Pegasus, Some Loves Hurt
More Than Others,” a mixed-media, life- sized work that was first exhibited in
1983. The sculpture “depicts a winged, taxidermied horse that appears to be in
the process of breaking through the roof of a sleek lowrider, as if about to
take flight.” 

Saatchi & Saatchi made
an ad campaign for Toyota, including a TV ad prominently featuring “a massive,
pink stuffed animal–specifically, a hybrid of a unicorn and Pegasus–strapped to
the roof of a Toyota RAV4.”  The
voiceover narrates: “This is Lady. She’s a unicorn. And a Pegasus. And why is
she strapped to the roof of my RAV4? Well if you have kids, then you know why.
Now the real question. Where’s this going in the house? The RAV4. Toyota. Let’s
go places.”  The image also appeared in a
print ad and a display featuring the stuffed animal at the 2015 Chicago Auto
Show.

 

Croak sued for copyright infringement, but the court found
that the only similarity was that of idea, not expression, as a matter of law.
“Indeed, the disparities between the works in terms of their authors’ creative
choices and their total concept and overall feel overwhelm any superficial similarities.”  Croak’s pegasus was “strikingly realistic and
life-like”; defendants’ was “a pink, smiling, oversized stuffed animal,”
different from a life-like pegasus “in virtually all respects, including
appearance and posture.…It appears to be a child’s toy because it is a child’s
toy.”  The cars in the works were also “highly
dissimilar.”  Croak’s featured a vintage
lowrider, half red and half blue, that “exudes cool” (the court discussed the cultural significance of the lowrider in a footnote), while the RAV4 was “a
modern, family-friendly SUV in a glossy blue…. No one could reasonably view
them as sharing an aesthetic appeal.” 
Nor were they presented to the viewer in the same way:
 
The Pegasus in the Sculpture is
presented as bursting forcefully through the roof of a now severely damaged
car, as it unfurls its body in preparation for flight. It radiates exertion,
dynamism, and sheer power. In contrast, defendants’ Pegasus is strapped to the
intact roof of an SUV and carries no suggestion of life, movement, or vitality.
 
The stuffed animal wasn’t free to move—it was pretty clearly
strapped to the car in the TV ad, and the narrator reinforced that impression,
and even in the Chicago Auto Show display the staging was “radically
different.”  The settings were also “strikingly
different”: “The smoke billowing in the background of the Sculpture is in stark
contrast to the sunny, suburban setting” of the TV ad or the setting of the
Chicago Auto Show.  The court refused to
“focus on a laundry list of technical similarities (as opposed to disparities)
that an ordinary observer would be disposed to overlook.”  These technical similarities—the pegasuses
were soft, the cars hard, etc.—“have little to no effect on the aesthetic
appeal of a given work, and … pale in comparison to the works’ disparities,”
particularly the taxidermied animal v. child’s toy impression. 
 
No reasonable jury could find similarity in the “total
concept and overall feel” of the works. Defendants’ works “evoke feelings of
warmth, family, and fun,” while Croak’s sculpture “evokes raw power,
independence, and escape. It depicts the supernatural by animating a
mythological creature, while defendants’ works are situated in the real world.”  Croak’s sculpture could be interpreted in
different ways; in the nature of art, “[s]ome might see violence where others
perceive spirit…. But no reasonable juror would find the Sculpture
light-hearted in nature, evoking family and children.”

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