When a family is in peril, which dog will it turn to for help? The owner of the famous fictional collie dog known as “Lassie” has an idea about that. Classic Media has filed a $1 million copyright lawsuit against financial services firm J.G. Wentworth and its advertising agency for making a TV commercial with a dog that allegedly is too similar to its iconic character.
Lassie ran on TV between 1954 and 1973 and also spawned 11 feature films. Now the question is whether Lassie’s owner can sink its teeth into unfriendly folks who want to use the image of a heroic collie on television.
According to a complaint filed in New York federal court, during Lassie‘s long run on television, the show had a memorable recurring storyline where Lassie is sent by his fictional owners, including Timmy Martin, to go seek help. “During her search, Lassie is shown running through a field, forest, or other rural areas until she finds humans who can save her companions,” says the lawsuit.
In J.G. Wentworth’s commercial, entitled “Get Help Girl,” a mother and son sit in a 1950s farmhouse-styled kitchen and are dressed to clearly indicate they are from that era. The mother is distressed. “Mom, what’s wrong?” questions the boy. The mother responds by saying, “Oh, Eddie, we’ve got to come up with some money or we’ll lose the ranch.”
The boy is confused. “But mom, don’t you get structured settlement payments each month?” The mother answers, “I do, son, but the amount I get just isn’t enough. We need a lump sum of cash to pay it off…”
Enter the dog, who races through fields, forests, and other rural areas to get to J.G. Wentworth for help. Here’s the commercial with further info and analysis below:
In the complaint, Classic provides some evidence that Lassie was on the minds of the advertiser when making the spot.
In December, 2009, Steve Pimsler, a vp at the co-defendant advertising agency, Karlin + Pimsler, contacted an employee in Classic’s licensing department to discuss licensing the Lassie character for a client. The two exchanged e-mails, including one where Pimsler noted that “[o]ur idea is to set up a situation similar to the Lassie TV show…”
But the discussions didn’t go anywhere, and Classic says it never heard anything after January 6, 2010. The commercial spot debuted on television two months later. Classic believes the ad infringes its copyright and is a derivative work of its property. The plaintiff is demanding at least $1 million in damages and all gains, profits and advantages derived by the alleged use of its property.
In the past, courts have ruled that fictional characters can receive protection. For example, James Bond and Godzilla were copyrightable because of an identifiable set of traits.
But the plaintiff must also show that the supposedly infringing work is substantially similar to the original work. Would a normal observer recognize the above commercial as being a copy of Lassie?
It’s not an easy question.
For example, in the early 1980s, ABC had a show entitled The Greatest American Hero about a character named Ralph Hinkley with superhuman speed and strength, the ability to fly, imperviousness to bullets, and holographic vision. Warner Bros. sued, alleging it was a copyright rip-off of its Superman character. Here’s what the 2nd Circuit Court of Appeals had to say:
“Ultimately, care must be taken to draw the elusive distinction between a substantially similar character that infringes a copyrighted character despite slight differences in appearance, behavior, or traits, and a somewhat similar though non-infringing character whose appearance, behavior, or traits, and especially their combination, significantly differ from those of a copyrighted character, even though the second character is reminiscent of the first one. Stirring one’s memory of a copyrighted character is not the same as appearing to be substantially similar to that character, and only the latter is infringement.” (boldface ours)
Ultimately, the appeals court affirmed a federal judge’s summary judgment for the defendant, finding that the “overall perception” of the Hinkley character was different from the Superman character. The two characters shared some traits but looked and acted differently.
In the opinion, the appeals court imagined that a court examining the question of bringing a Superman-like facsimile into a new context like “in the service of the underworld” would be a much closer issue, with factual determination by a jury. One might imagine that Classic will argue in trying to defeat a summary judgment motion that putting a Lassie-type dog into the service of a financial services company is something similar.
Then again, maybe in this down economy, a heroic dog that saves a family from financial trouble is a fair use parody.
We’ll wait for the judge to bark on this.