Mattel, Inc. v. Azrak-Hamway Intern., Inc.
| Decision Date | 23 December 1983 |
| Docket Number | D,No. 518,AZRAK-HAMWAY,518 |
| Citation | 724 F.2d 357 |
| Parties | , 1984 Copr.L.Dec. P 25,620 MATTEL, INC., a Delaware Corporation, Appellant, v.INTERNATIONAL, INC., d/b/a Remco Toys, a New York corporation, Ezra Hamway, Roland Paris, and Marvin Azrak, Appellees. ocket 83-7813. |
| Court | U.S. Court of Appeals — Second Circuit |
A. Sidney Katz, Welsh & Katz, Chicago, Ill. (Eric C. Cohen, Pamela McKenna, Welsh & Katz, Chicago, Ill., Alexander R. Sussman, Robert J. Mandel, Fried, Frank, Harris, Shriver & Jacobson, New York City, of counsel), for appellant.
Anthony F. LoCicero, Amster, Rothstein & Engelberg, New York City (Jesse Rothstein, New York City, of counsel), for appellees.
Before OAKES, MESKILL and PIERCE, Circuit Judges.
Mattel, Inc. (Mattel), the manufacturer of a popular series of 5 1/2" action figure toy dolls sold under the registered trademark name of "Masters of the Universe," brings an expedited appeal from a decision of the United States District Court for the Southern District of New York, Richard Owen, Judge. Judge Owen refused to issue a preliminary injunction against Azrak-Hamway International, Inc. (Remco), and certain Remco officials, to stop production and sale of Remco's series of 5 1/2" action figure toy dolls titled the "Warlords," which were designed to compete with Mattel's "Masters of the Universe" dolls. Mattel claims that by producing and selling the "Warlord" dolls, Remco infringes upon Mattel's registered copyright in the "Masters of the Universe" dolls in violation of 17 U.S.C. Secs. 106, 501 (Supp. V 1981), its federal trademark rights in violation of 15 U.S.C. Secs. 1115(b), 1125(a) (1976), and its common law right under New York law to be protected against unfair competition.
The standard in the Second Circuit for injunctive relief, as set forth, e.g., in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979), requires a showing of two things, first, irreparable harm and, second, "either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Judge Owen held that Mattel did not make a showing that either prong of the second requirement was met. We agree.
The "Masters of the Universe" dolls are a series of dolls with different heads, clothing, and names, but all sharing a common torso, which is a sculptor's exaggerated rendering of a bodybuilder's body with shortened legs. Likewise, the Remco series of dolls all share a body with overdeveloped musculature and legs proportionately shorter than the average human being's. The Remco dolls all have names, heads, feet, hands, and clothing different from the Mattel dolls, with their names and costumes designed so that the dolls represent certain comic book figures. The Remco dolls' bodies also have pectoral, abdominal, and other musculature that differs in minor though significant detail from that of the Mattel dolls. Remco obtained a license from DC Comics, Inc., to model its dolls after their comic book figures "Warlord," "Arak," and "Hercules unbound." Both the Mattel and the Remco dolls are posed in a similar crouching position which may be likened to the fighting stance of a Neanderthal man or that of a latter-day professional wrestler approaching his opponent. As the district court found, any claim of uniqueness in the pose is "frivolous."
Mattel's claim is that Remco copied the torso of its toy, which it considers the essential part of the doll. While it is true, of course, that it is possible to infringe while copying only a part of a work, see, e.g., Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 744 (S.D.N.Y.) (copying of four notes and two words out of an entire song may constitute infringement), aff'd, 623 F.2d 252 (2d Cir.1980), we agree with the district court that Mattel did not demonstrate substantial likelihood of success in proving infringement of its "Masters of the Universe" torso.
Mattel owns a registered copyright in its dolls. To prove infringement, it must either produce proof of direct copying or show that Remco had access to its dolls and that the protectable features of the Remco doll's body are substantially similar to the Mattel doll's body in the eyes of the average lay observer. E.g., Warner Brothers Inc. v. American Broadcasting Co., 654 F.2d 204, 207-08 (2d Cir.1981). Remco gave its sculptor a Mattel doll to show him what kind of doll it wanted, and to insure that Remco's doll would not appear to be the physically weaker of the two toys. But the district court apparently credited the evidence of Remco's expert on human anatomy that the Remco doll was not a direct copy of the Mattel doll, but rather was simply another artist's rendering of the human form with an exaggerated musculature. The artist who sculpted the model for the Remco figure had body-building and comic magazines as well as other material from which he worked.
Though the dolls' bodies are very similar, nearly all of the similarity can be attributed to the fact that both are artist's renderings of the same unprotectable idea--a superhuman muscleman crouching in what since Neanderthal times has been a traditional fighting pose. The rendering of such an idea is not in itself protectable; only the particularized expression of that idea, for example, the particular form created by the decision to accentuate certain muscle groups relative to others, can be protected. See, e.g., Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir.1966). In this case a lay observer would recognize certain differences in the way the two sculptors have created images of strength by overemphasizing certain muscle groups. Thus, the district court reasonably found that the only parts of the dolls' bodies that constitute the protectable expression of an idea are not substantially...
To continue reading
Request your trial
-
Straus v. Dvc Worldwide, Inc.
...choice of a setting or situation." Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir.1986); see also Mattel, Inc. v. Azrak-Hamway Int'l, Inc., 724 F.2d 357, 360 (2d Cir.1983). Protectible aspects of photographic works may include the angle from which the picture was taken, the lighti......
-
Lego A/S v. Best-Lock Constr. Toys, Inc.
...created and not copied from others — would not enjoy protection from copying." Id. at 135.In Mattel, Inc. v. Azrak-Hamway Int'l, Inc. , 724 F.2d 357, 360 (2d Cir. 1983) (per curiam), the Second Circuit found that a 5 ½ inch Warlord doll did not infringe upon a 5 ½ inch Masters of the Univer......
-
Conan Properties, Inc. v. Mattel, Inc.
...that CPI may not arrogate any legal rights in the "unprotectable sic idea of a superhuman muscleman." Mattel, Inc. v. Azrak-Hamway Int'l, Inc., 724 F.2d 357, 360 (2d Cir.1983) (per curiam); cf. Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) ("A comedy based upon conflicts b......
-
Eldon Industries, Inc. v. Rubbermaid, Inc.
...of whether secondary meaning exists, but they are insufficient standing alone to prove secondary meaning. Mattel, Inc. v. Azrak-Hamway Int'l, Inc., 724 F.2d 357, 361 n. 2 (2d Cir.1983). Eldon's advertising, while it pictures its products, does nothing to emphasize the cored rib configuratio......
-
COPYRIGHT AND THE CREATIVE PROCESS.
...358-59. (272) Id. at 359. (273) Id. (274) Id. (275) Id. (second alteration in original) (quoting Mattel, Inc. v. Azrak-Hamway Int'l, Inc., 724 F.2d 357, 360 (2d Cir. (276) Id. at 361. (277) Id. at 361 n.14. (278) Id. (279) Id. (280) See Mark Bartholomew, Copyright and the Brain, 98 WASH. U.......