Thin Copyrights - Protected But Not Infringed

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...