Who Gives Who the Finger? : The Anchor Plate

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An•chor Plate

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a metal plate fastened to the exterior of a brick building with a washer or tie rod to reinforce structural support, usually decorative

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Home > Copyright > Who Gives Who the Finger?

Who Gives Who the Finger?

Posted on October 26, 2011 by Michael A. Kahn

Okay, copyright fans, time to unpack our lamest finger cliches. Earlier this month down in San Antonio federal court, #1 Fan Company and Spirit Industries commenced the ultimate case of finger-pointing in their copyright infringement complaint in #1 Fan Company et al. v Pangea Direct. The creation at the center of the lawsuit is that over-sized foam hand with upraised forefinger familiar to sports fans everywhere.

The issue, at least as framed in the complaint, is whether Pangea's version of the foam hand (shown to the right) infringes the plaintiff's prior version (shown to the left).Ah, but keep your fingers crossed.The more intriguing issue is lurking just behind those fingers, and it will likely turn into a copyright dispute that is, well, finger-lickin' good.

It's important to point out what this case is not. It is not a patent case, where the plaintiff claims to have invented the over-sized foam hand. Nor is it a trademark case, where the plaintiff claims that consumers are likely to be confused as to the source, sponsorship or affiliation of the competing foam hands.

No, this is a copyright case, and under Section 102 of the Copyright Act, 17 U.S.C.§ 102, copyright protection for a work does not extend to any idea or concept embodied in that work. Up until this lawsuit, my favorite idea-vs-expression case involved a very different type of forefinger. In JCW Investments v. Novelty, the Seventh Circuit, trying to keep a straight face, struggled to define what portion of the farting doll known as Pull My Finger Fred (shown to the right) constituted protected expression and what portion constituted an unprotectable idea. (Read the witty opening paragraph of that decision.)

Here, however, the idea-vs-expression issue seems a bit more straightforward. The unprotectable idea would seem to be: an over-sized foam hand with an upraised forefinger. The rest is, or at least could be, protectable expression.

The other related issue is the "useful article" distinction. Useful articles under copyright law are objects that have an intrinsic utilitarian function that is not merely to portray the appearance of the article, such as an automobile body clothing, furniture, and dinnerware. Copyright does not protect the utilitarian aspects of such works; however, it may protect any pictorial, graphic or sculptural authorship that can be identified separately from the utilitarian aspects. For example, as the Copyright Office explains, "a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing."

Is the foam hand at issue a "useful article"? If so, are there expressive elements that can be identified separately from the utilitarian aspects? And did the defendant copy any of those elements? While it's too earlyto put our finger on the key issue in the case, we can at least give a thumbs up to the lawyers at Gunn, Lee & Cave, P.C., who did a nice job drafting the complaint.