Gary Blehm, a commercial artist and the creator of Penmen characters, sued brothers Albert Jacobs and John Jacobs, creators of Life is good, for copyright infringement. Blehm’s Penmen are “deceptively-simple looking” figures involved in a wide variety of activities based on Blehm’s life experiences. Blehm’s Penmen are drawn in black on a white background and “have round heads, disproportionately large half-moon smiles, four fingers, large feet, disproportionately long legs, and a message of unbridled optimism.” (Opinion pdf pages 2-3). Between 1989 and 1993, Blehm created 6 posters, each of which contained hundreds of Penmen engaged in a variety of activities. Blehm’s Penmen posters were sold nationally between 1990 and 2004. He also created t-shirts, a Penmen comic strip and a Penmen book.
The Jacobses created a leading Life is good character, Jake, in August 1994. Life is good as a company aspires to “overarching themes of optimism, simplicity, humor, and humility.” (Opinion pdf page 6). Blehm claimed that Life is good’s Jake infringed Blehm’s copyrighted Penmen works. The district court granted Life is good’s motion for summary judgment, ruling that the Jake images are not substantially similar to the legally protectable elements of the Penmen images. The Tenth Circuit Court of Appeals affirmed, stating “we must be careful not to grant Mr. Blehm a monopoly over all figures featuring black lines representing the human form. Our analysis cannot be so generous as to sweep in all manner of stick figures as potentially infringing on his works.” (Opinion pdf page 26).
The two elements of copyright infringement are “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” (Opinion pdf page 7). Life is good did not dispute the validity of Blehm’s copyright, so only copying, the second element, was at issue.
The two components of the copying element are 1) copying as a factual matter and 2) substantial similarity between the allegedly infringing work and the legally protected elements of the copyrighted work. Factual copying in and of itself does not give rise to liability for copyright infringement. Substantial similarity determines whether factual copying amounts to copyright infringement.
Substantial similarity. The legally protectable elements of the original work and the allegedly infringing work must be substantially similar for the plaintiff to prove copying. Examining this issue involves a two part analysis. 1) Identifying the legally protected elements of the copyrighted work. 2) Determining whether the legally protected elements of the copyrighted work are substantially similar to the accused work.
Legally protectable elements: the idea/expression distinction.
Section 102(b) provides, ‘In no case does copyright protection . . . extend to any idea . . . [or] concept . . . regardless of the form in which it is described, explained, illustrated, or embodied in such work.’ 17 U.S.C. § 102(b). This provision enshrines the ‘fundamental tenet’ that copyright protection extends only to the author’s original expression and not to the ideas embodied in that expression. In looking at two works of art to determine whether they are substantially similar, focus must be on the similarity of the expression of an idea or fact, not on the similarity of the facts, ideas or concepts themselves.
(Opinion pdf page 10).
The court must separate the ideas, which are not protected, from the expression, which is protected. This concept is vague. Courts use a case-by-case approach to make the distinction between ideas and expression.
The Tenth Circuit gave a few examples of the distinction between ideas and expression. For example, copyright protection does not extend to the size, shape and medium of wooden dolls. Fashion dolls with a bratty look or attitude, dolls sporting trendy clothing and dolls with upturned noses, bow lips and wide spaced eyes are also not protected. Copyright protects “particularized expression,” such as emphasizing certain muscle groups in a muscular doll or distinctive eye style and stitching in a dinosaur doll.
An architectural design may infringe if its use of public-domain elements gives off a similar unique effect in decoration and design as the copyrighted work. . . . A plaintiff’s “selective and particularized” alterations of a public-domain carpet pattern also can constitute protectable expression.
(Opinion pdf page 13-14).
Test for substantial similarity: the ordinary observer. After the court has distinguished between a copyrighted work’s unprotected ideas and protected expression, the next step is to determine whether the protected elements of the copyrighted work are substantially similar to the accused work.
Courts must determine whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value.
(Opinion pdf page 14).
Courts focus on the similarities, and not the differences, between the works.
Comparing the Penmen and Jake images. The Tenth Circuit noted that copyright does not protect cartoon figures performing everyday activities, such as catching a Frisbee or skateboarding, the use of common anatomical features, such as arms, legs and hands or the use of natural poses, such as reclining while taking a bath.
Protectable elements of expression are the Penmen’s rounded, half-moon smile that takes up a substantial portion of the face; the lack of any other facial features; that Penmen are filled in black, except for the white half-moon smile; and that the head is detached, hovering above the body. Other protectable elements of expression are a head that is slightly disproportional to the body; thin, long, arms and legs that are disproportionate to the torso; four fingers on each hand; and disproportionately long and thick feet.
Blehm provided the district court with an exhibit, also attached to the Tenth Circuit’s opinion, placing 67 Penmen figures side by side with their allegedly infringing Jake counterparts. (Opinion pages 27-38). The Tenth Circuit compared two sets of images: Penmen and Jake peace sign images and Penmen and Jake Frisbee images. (Opinion pdf pages 21 and 24).
In looking at the peace sign images, the Tenth Circuit determined that Jake’s head is very large compared to the body and that the Penman has a relatively proportional head. The figures’ arms, legs and torsos were proportioned differently and the feet were different. The similarities were black-line bodies, four fingers, large half-moon smiles and feet pointed outward. But the similarities either had important differences or were not protectable expression. Jake’s fingers appeared to be stubbier. The feet pointing outward “naturally flows from the common idea of drawing a two-dimensional stick figure and is thus unprotected.” (Opinion pdf page 22).
The Tenth Circuit noted that the crux of the litigation seemed to be the figures’ smiles. Both have disproportionately large half-moon smiles. Both are crescent shaped, but the idea of a crescent-shaped smile is unprotected. The Tenth Circuit determined that the smiles are not substantially similar. For example, the Penman’s smile is rounded on the tips, but Jake’s smile shows sharper angles at the tips. The omission of other facial features on the Penman make it unclear whether the smile is a smile or a face with no features and bangs coming down the forehead. Jake’s smile is unambiguously a smile. The Jake image contains color, whereas the Penman image does not. The Tenth Circuit concluded that “no reasonable juror could determine that the Jake figure is substantially similar to the protected, expressive choices Mr. Blehm used for the Penman figure.” (Opinion pdf page 23).
In the Frisbee image, both a Penman and Jake are suspended in the air with outstretched legs, attempting to catch a Frisbee between their legs. The Tenth Circuit found that the Penman’s protectable expression was not substantially similar to the Jake image. For example, the Penman’s legs are straight, while Jake’s are curved. Jake’s head is different in the same ways as in the peace sign image. The arms, torso, hands and feet are also different. The Jake image contains color and the Penman image does not.
The Tenth Circuit summarized some of the differences regarding the remaining 65 alleged infringing images. The Jake images wear clothes, but the Penman images do not. Some of the Jake images are more three-dimensional than the Penmen. Not all of the Jake and Penman image pairings share the half-moon smile directed at the viewer. Many Jake images contain a substantial amount of color.
Copying alone is not infringement. The infringement determination depends on what is copied. Assuming Life is Good copied Penmen images when it produced Jake images, our substantial similarity analysis shows it copied ideas rather than expression, which would make Life is Good a copier but not an infringer under copyright law.
(Opinion pdf page 26).
This case is Blehm v. Jacobs, No. 11-1479, Tenth Circuit Court of Appeals.