Originally Posted 3/22/07 written by Shane Percival

As stated in the Patently-O blog, a couple days ago, the 7th Circuit in JCW Investments v. Novelty, Inc., held that the copyright on the novelty item “Pull My Finger Fred” was infringed by the novelty item “Fartman”. The two items are similar dolls of balding middle-aged men sitting in a recliner while wearing a white tank-top & blue pants, where the doll emits a farting noise and a phrase when the finger of either doll is pulled. This case highlights when a person may want to obtain both patent and copyright protection for thier invention.

Generally speaking, a person wants to obtain a patent on how an item works. Here, assuming that a patent search showed that there was reasonable coverage available for such an item, that would include filing a patent application on a doll which emits a bodily function noise when an appendage is pulled, or something to that effect. As stated on the FAQ portion of our website (http://www.lld-law.com/PatentFAQ.html#_5._What_is), a copyright is available on an article of manufacture whose nonfunctional portion can be seaprated from the function elements of the article. Since Pull My Finger Fred is essentially a “sculpture” that performs a function, the sulpture portion could be copyrighted.

Why does this matter? Because the patent portion of such a device would be broader than the copyright. Although the court held that the copyright on Pull My Finger Fred was infringed, the cort also said that a figurine having “a blond mullet and wear

[ing] flannel, [with] a nose that is drawn on rather tha protruding substantially from the rest of the head, [] standing rather than ensconced in an armchair, and be wearing shorts rather than blue pants” would not infringe the copyright, even if the figurine farted when his figure was pulled. However, such an embodiment WOULD likely infringe the patent described above because the patent would protect the concept of a farting doll, whereas the copyright just protects how the doll looks.

We get a fair amount of ptential clients who come into our office asking why they need a patent on their invention instead of a copyright or a design patent. This case shows why – you can win on a copyright infringement claim, but as stated by the 7th Circuit, only when nearly an exact replica is created. If you want to protect your unique concept, be it a fart-doll or otherwise, your best bet is to go with a patent.