RR:IT:IP COP-1 460135 KWM
Ms. Andrea Hardebeck
Novelty Distributors
2700 West Main
Greenfield, Illinois 46140
RE: Imitation jewelry; Copyright; Lion King; Disney
This is in response to your request for a binding ruling
regarding potential copyright infringement on certain articles of
imitation jewelry.
FACTS:
Included with your request are 17 separate items of jewelry,
including rings, necklaces, earrings and pins. 7 distinct
designs are present among the items. Identified by item number,
they are grouped below by design description:
#12169 necklace Tan lion cub sitting
#12170 pin Tan lion cub sitting
#12169 necklace Male and female lion with ribbon and
bell
#12170 pin Male and female lion with ribbon and
bell
#12171 earrings Male and female lion with ribbon and
bell
#12170 pin Yellow lion cub standing with leaves
#12169 necklace Yellow lion cub sitting
#12170 pin Yellow lion cub sitting
#12169 necklace Yellow lion cub sitting with boxes and
candy cane
#12171 earrings Yellow lion cub sitting with boxes and
candy cane
#12169 necklace Yellow lion cub standing with hat and
Christmas tree
#12171 earrings Yellow lion cub standing with hat and
Christmas tree
#12169 necklace Tan lion cub with hat
#12170 pin Tan lion cub with hat and stocking
#12171 earrings Tan lion cub with hat
#12202 ring Tan lion cub with hat (red)
#12202 ring Tan lion cub with hat (red)
Your letter states that the items are " original' artwork" and
that you are requesting a binding ruling to determine whether any
of the designs may be considered piratical of protected
copyrights under the Customs laws.
ISSUE:
Are any of the articles subject to detention, seizure and
possible forfeiture under the Customs laws as piratical copies of
copyrighted works?
LAW AND ANALYSIS:
Typically, the Customs Service limits ruling requests to 5 items,
which must be of the same class or kind. In this case, 17 times
were submitted, representing 7 distinct designs. We provide
below the request ruling for the 7 designs as representative of
the larger sample group, but note that future requests should be
limited 5 items.
Under 602 of the Copyright Act of 1976 (17 U.S.C. 602) the
Customs Service is charged with prohibiting the importation of
merchandise which constitutes an infringing copy. Infringing
copies are those which are substantially similar to a copyrighted
work. Substantial similarity turns upon whether an average lay
observer would recognize the copy as having been appropriated
from the copyrighted work. Ideal Toy Corp. V. Fab-Lu Ltd. 360 F.
2d 1022 (1966). Another way of stating the test is whether an
ordinary observer who is not attempting to discover disparities
between the two articles would be disposed to overlook them and
regard their aesthetic appeal as the same. The substantial
similarity test was developed to prevent a potential infringer
from producing a supposedly new and different work simply by
making deliberate but trivial variations of specific features of
the copyrighted work.
Protected copyrights may include visual artistic works such as
animated cartoons. Copyright does not protect ideas but rather
the tangible expression(s) of those ideas, and includes a
requirement that some degree of intellectual labor is required to
reflect the author's unique contribution to the protected work's
expression. The Walt Disney Company has registered a copyright
for certain characters depicted in the animated feature film "The
Lion King" (VA 611-201) and recorded that copyright claim with
the Customs Service (COP 94-00072). The copyrighted work
includes all characters from the film, their coloration and
expressions, and provides various poses of the characters as
examples. Included among the characters are "Simba" the male
lion cub, "Nala" the female lion cub, "Mufasa" the adult male
lion and "Sarab" the adult female lion. The Customs Service
considers the copyright recordations as prima facie evidence of
the copyright claim and enforces that claim as provided in the
Customs laws.
In the instant case, Customs compared the samples with the
protected work registered by Disney. The idea of a lion, as
either a cub or an adult, is not protected here, but rather the
specific expression embodied by intellectual creativeness of the
Disney work. In comparing the items, we find that substantial
similarity exists between the sample items and the protected
Disney works.
The Disney characters show unique expression through the shaping
of the animals' head, the shape and position of the ears, nose
and eyes, facial expression, and presentation of body features
such as a mane or tail. Disney's Simba has unique expressive
features which are copied in the "yellow lion cub" items, whether
sitting, standing, wearing a hat or accompanied by articles such
as the tree or boxes. In each case, the expressive features of
Disney's Simba are apparent, such that an average observer would
recognize the copy as having been appropriated from the Disney
character. Similarly, the Nala, Mufasa and Sarab character
features are copied in the "tan lion cub", "male lion" and
"female lion" respectively. These items having substantial
similarity to the protected Disney works would be considered
piratical by Customs if imported. Piratical copies imported in
violation of 17 U.S.C. 602(b) and subject to seizure and
forfeiture under the provisions of 17 U.S.C. 603(c)
HOLDING
Each of the 7 designs described above are piratical copies of a
registered and recorded copyright
(COP 94-00072). These items, if imported, would be subject to
seizure and forfeiture under the laws enforced by Customs.
Sincerely,
John F. Atwood, Chief
Intellectual Property Rights Branch