acters and elements to the manufacturers of toys, games, lunch boxes, and comic books. In addition, the H. R. Pufnstuf characters were featured in Kellogg’s cereal commercials and used by the Ice Capades. After the McDonaldland campaign, which included the distribution of toys and games, plaintiffs were unable to obtain new licensing arrangements or extend existing ones.[1] In the case of the Ice Capades, the H. R. Pufnstuf characters were actually replaced by the McDonaldland characters.
Plaintiffs filed suit in September 1971. The complaint alleged, inter alia, that the McDonaldland advertising campaign infringed the copyrighted H. R. Pufnstuf television episodes as well as various copyrighted articles of Pufnstuf merchandise.[2] By way of relief, plaintiffs sought compensatory damages of $250,000, an order for an accounting of profits attributable to the infringements, or, in the alternative, statutory “in lieu” damages, as provided by 17 U.S.C. § 101(b). Prior to trial, the district court signed a Pre-Trial Conference Order that was “approved as to form and content” by counsel for both sides. It provided that “[t]he prayer for relief raises issues of injunctive relief and an accounting which are questions for the Court.”
The three week jury trial began on November 27, 1973. The jurors were shown for their consideration on the question of infringement: (1) two H. R. Pufnstuf television episodes; (2) various items of H. R. Pufnstuf merchandise, such as toys, games, and comic books; (3) several 30 and 60 second McDonaldland television commercials; and (4) various items of McDonaldland merchandise distributed by McDonald’s, such as toys and puzzles. The jury was instructed that it was not to consider defendants’ profits in determining damages, but could consider the value of use by the defendants of plaintiffs’ work.
A verdict in favor of plaintiffs was returned and damages of $50,000.00 assessed. After the verdict, the parties briefed the question of whether plaintiffs were entitled to additional monetary recovery in the form of profits or statutory “in lieu” damages. The district court denied plaintiffs’ claim for such relief. The court found that these matters were properly for the jury to consider so that it would not exercise its discretion in hearing further evidence. These appeals followed.
I. INFRINGEMENT
Proof of Infringement
It has often been said that in order to establish copyright infringement a plaintiff must prove ownership of the copyright and “copying” by the defendant. See, e. g., Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2 Cir. 1976); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3 Cir. 1975); 2 M. Nimmer on Copyright § 141 at 610–11 (1976) (hereinafter “Nimmer”). “Copying,” in turn, is said to be shown by circumstantial evidence of access to the copyrighted work and substantial similarity between the copyrighted work and defendant’s work. Reyher v. Children’s Television Workshop, supra, 533 F.2d at 90; 2 Nimmer § 141.2 at 613. But an analysis of the cases suggests that these statements frequently serve merely as boilerplate to copyright opinions.
Under such statements, infringement would be established upon proof of ownership, access, and substantial similarity. Application of this rule, however, would produce some untenable results. For example, a copyright could be obtained over a cheaply manufactured plaster statue of a nude. Since ownership of a copyright is established, subsequent manufacturers of statues of nudes would face the grave risk
- ↑ The evidence reveals that certain persons with whom plaintiffs dealt for licensing believed that the H. R. Pufnstuf characters were being licensed to McDonald’s for use in their McDonaldland campaign. Accordingly, they did not pursue licensing arrangements for the characters themselves.
- ↑ The complaint also contained claims for relief in unfair competition, tortious interference, quasi-contract, and contract. The judgment and this appeal are based solely on the copyright claim.
