Blehm v. Jacobs, 10th Cir., No. 11-1479, December 27, 2012

Some appellate decisions are worth examining because they plow new ground. Others serve to explain the ground that was plowed. This decision – dealing with substantial similarity (or lack thereof) between two sets of stick figures – is among the latter.

The Supreme Court has familiarized us with the concept of “thin” copyrights – the thinnest of all copyrights (or works that fail to qualify for copyright) belongs to the disappearing genus of printed “White Page” telephone directories where the ordering of a compilation is predetermined by such essential, non-original parameters as alphabetically listing all names in a given geographic area. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Some “modicum” of original and creative authorship is required. Of course, while some copyrights may be “thin,” they are not necessarily “anorexic,” as the Second Circuit put it. See the Second Circuit’s explanation in Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc., 945 F. 2d 509, 514 (2nd Cir. 1991) (finding Yellow Pages in question to be copyrightable).

Compilations may appear to evince a clear division between protected and unprotected works while, in the case of stick figures, the line (pardon the pun) may be harder to draw. In fact, the Blog title is somewhat of a misnomer. While the Trial Court in Blehm described the stick figure copyrights as “thin,” the 10th Circuit was clearly reluctant to apply this label to works of pictorial authorship where expression and idea are much more difficult to discern. As stated by the 10th Circuit, “Even assuming the distinction between ‘broad’ and ‘thin’ protection is correct, Mr. Blehm’s works would not necessarily fall in the ‘thin’ protection category.” (Blehm at page 18 – all citations are to the slip opinion attached to this article).

This particular case entailed a conflict between two sets of stick figures, the “Penman” of the plaintiff and the “Jake” figures of the defendant. Both were what most people would commonly call stick figures. It was, thus, necessary for the Court, on appeal from summary judgment favoring the defendant, to assess what copyrightable expression could be found in Penman and then determine whether Jake appropriated any of these creative elements.

The Court generally observed that the plaintiff, Mr. Blehm, could claim no copyright over the idea of a cartoon figure holding a birthday cake, catching a Frisbee, skateboarding or taking part in other everyday activities. Likewise, infringement could not be predicated on Penman and Jake sharing common anatomical features such as arms, legs, faces and fingers or in common poses such as reclining while bathing or lounging in an inner tube. What then was protected? “The Penmen at first glance might be considered simple stick figures, but they are more nuanced than a child’s rudimentary doodling.” Blehm at 18-19. The Court found significant that Penman always had a half-rounded smile taking up a substantial portion of the face with all other facial features entirely absent. The Court also described, and found protected expression in, the rules which guided Mr. Blehm in drawing the Penman images: “The figure’s head might be perceived as slightly disproportional to the body. Its arms and legs are too thin, long, and disproportionate to the torso, which is relatively short. Mr. Blehm also chose to give the Penmen four fingers — each about as thick as their arms and legs — on each hand, as well as feet that are disproportionately long and thick compared with the rest of the body. Thus, each Penman reflects the stylistic choices Mr. Blehm has made.” Blehm at 19.

The Court then went on to compare in detail two sets of Penman/Jake images for substantial similarity, namely, the Peace Sign images and the Frisbee images. The Court expressly declined to compare substantial similarity between the underlying ideas inherent in the images but only the protected expression. In each instance, the Court explained why the Jake images were far from infringing anything at all. For example, regarding the Peace Sign images, “Jake’s head is very large compared with the body, while the Penman’s head is relatively proportional. The Penman’s arms and legs are long and disproportionate to its truncated torso. Jake, on the other hand, has more proportional limbs compared with his torso. The figures’ feet are distinctly different: the Penman’s are thick, long, and roll-shaped, but Jakes are shorter and triangular.” Blehm at 21-22. “We conclude that no reasonable juror could determine that the Jake figure is substantially similar to the protected expressive (emphasis in original) choices Mr. Blehm used for the Penman figure.” Blehm at 23. In short, the Court appeared to believe that the plaintiff was grasping at straws … or should we say “sticks”?

Why then this Blog about an unremarkable decision in which anyone but the plaintiff apparently could foresee the outcome? First, in an internet age, many minimal works have allegedly been infringed or have been alleged to infringe. How do we determine where a court will draw the line between expression and idea? How can we even guess or begin to guess? Here we have the 10th Circuit’s courteous discussion of dissimilarities between two sets of drawings in which neither set would likely infringe on the other. Second, and most importantly, the Court, in this case, had the eminent wisdom to not only describe these significant, non-infringing differences, but also to include the complete comparison chart comprising sixty-seven sets of paired images for which infringement was alleged. The readers can, as is often not the case, now judge for themselves whether a thin work is protected and, if so, whether an infringement action is meritorious for filing or defending. It has often been said, “You can never be too thin or too rich.” The former obviously no longer applies to copyrights.