Is A Cartoon Baby Entitled To Thick Or Thin Copyright Protection?

• Published date: 23 August 2023
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Media & Entertainment Law
• Law Firm: Global Advertising Lawyers Alliance (GALA)
• Author: Mr Brian Murphy (Frankfurt Kurnit Klein & Selz)

The plaintiffs (Moonbug) own the popular kids YouTube channel CoComelon. Moonbug's videos have garnered more than 165 billion (with a "b") views on YouTube, outstreaming Bad Bunny, Taylor Swift, and Drake combined. In 2021, Moonbug sued the defendants (Babybus), alleging that the defendants' Super JoJo website included videos, characters and other content that infringed upon Moonbug's copyrights. Last month, after a three-week trial in federal district court in the Northern District of California before the Hon. Edward M. Chen, a jury awarded Moonbug $23.4 million (with an "m") in damages.

Among the issues in the case was whether the defendants' main character "Baby JoJo" infringed upon the plaintiffs' character "Baby JJ." Here are side-by-side comparisons from the complaint so you can judge for yourself:

In the Ninth Circuit, once it has been determined that the defendant actually copied the plaintiff's work, courts use the two-part extrinsic/intrinsic test to determine whether that copying constituted unlawful appropriation (or infringement). The first (extrinsic) prong requires an objective analysis of the works to identify the elements in each that are protectable under copyright law. Expert testimony is permitted at this stage to help distinguish between protectable expression and unprotectable elements (such as ideas, public domain elements, and scenes a faire). Following this "analytic dissection" (or filtration), the similarities between the protectable elements in the works are compared. In the second (intrinsic) prong, the fact finder engages in a subjective analysis and comparison of the protectable elements of the two works from the standpoint of the ordinary reasonable observer.

The standard the jury uses for these comparisons is dictated by the scope of protection to which the plaintiff's work is entitled. As the court explained:

"If there's a wide range of expression (for example, there are gazillions of ways to make an aliens-attack movie), then copyright protection is 'broad' and a work will infringe if it's 'substantially similar' to the copyrighted work. ... In contrast, if there's only a narrow range of expression (for example, there are only so many ways to paint a red bouncy ball on blank canvas), then copyright protection is 'thin' and a work must be 'virtually identical' to infringe." (Cleaned up and citations omitted.)

When it came time to charge the jury, the parties fought about whether the Baby JJ character was entitled to...