If It Looks Like A Duck…. Quacks Like A Duck…. Maybe It’s A Duck; But Is It A Protectable Duck?
This case is a layered mess of creative contribution. Zimmerman, an independent ad agency, submits his novel ad concept to the insurance company AFLAC in the theme of, “You Don’t Know Quack”. This is, from the court record, among the images that the little ad agency submitted:
AFLAC was interested, but wanted changes. Zimmerman calls another, independent creative, Frazier, and asks Frazier to contribute some more exploratory illustrations. Zimmerman sends images that include these (again from the court record):
Zimmerman likes Frazier’s work and asks what the prize would be to go forward. After Frazier says a quarter of a million dollars; Zimmerman counters at one hundred thousand; and the two reach no agreement. Zimmerman sends an email later saying that the ‘client has decided to go in a different direction.’
AFLAC and Zimmerman went forward in creating the ad campaign. Here are two the resulting ads that were shown in such places as Times Square New York and other high visibility locations:
Frazier sued for copyright infringement among other claims. Defendants moved for summary judgement on two grounds: first, that the Frazier work is derivative of the Zimmerman underlying work and therefore cannot be independently protectable as there was no additional independent creation; and, second, that the image of the duck is not protectable under copyright law. Citing every copyright defendant’s best chestnut in support of disposing of any claim in which something from reality is depicted, Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), defendants contend that a graphical representation of a duck is dictated by its natural appearance, and that there are no protectable elements in Frazier’s illustrations.
The judge, Sandra Brown Armstrong, in the Northern District of California, ruled on September 24, 2010 that this case is going forward as Frazier has stated sufficient grounds to sustain the action. This is going to be an interesting case to watch as these facts frame the issues particularly well for some clarity to result in the topic of derivative work and copyright-ability. This is a case to watch.