Imitation jewelry; Copyright; Lion King; Disney

HQ 460135 March 5, 1996 RR:IT:IP COP-1 460135 KWM CATEGORY: Copyright Ms. Andrea Hardebeck Novelty Distributors 2700 West Main Greenfield, Illinois 46140 RE: Imitation jewelry; Copyright; Lion King; Disney This is in response to your request for a binding ruling regarding potential copyright infringement on certain articles of imitation jewelry. FACTS: Included with your request are 17 separate items of jewelry, including rings, necklaces, earrings and pins. 7 distinct designs are present among the items. Identified by item number, they are grouped below by design description: #12169 necklace Tan lion cub sitting #12170 pin Tan lion cub sitting #12169 necklace Male and female lion with ribbon and bell #12170 pin Male and female lion with ribbon and bell #12171 earrings Male and female lion with ribbon and bell #12170 pin Yellow lion cub standing with leaves #12169 necklace Yellow lion cub sitting #12170 pin Yellow lion cub sitting #12169 necklace Yellow lion cub sitting with boxes and candy cane #12171 earrings Yellow lion cub sitting with boxes and candy cane #12169 necklace Yellow lion cub standing with hat and Christmas tree #12171 earrings Yellow lion cub standing with hat and Christmas tree #12169 necklace Tan lion cub with hat #12170 pin Tan lion cub with hat and stocking #12171 earrings Tan lion cub with hat #12202 ring Tan lion cub with hat (red) #12202 ring Tan lion cub with hat (red) Your letter states that the items are " original' artwork" and that you are requesting a binding ruling to determine whether any of the designs may be considered piratical of protected copyrights under the Customs laws. ISSUE: Are any of the articles subject to detention, seizure and possible forfeiture under the Customs laws as piratical copies of copyrighted works? LAW AND ANALYSIS: Typically, the Customs Service limits ruling requests to 5 items, which must be of the same class or kind. In this case, 17 times were submitted, representing 7 distinct designs. We provide below the request ruling for the 7 designs as representative of the larger sample group, but note that future requests should be limited 5 items. Under 602 of the Copyright Act of 1976 (17 U.S.C. 602) the Customs Service is charged with prohibiting the importation of merchandise which constitutes an infringing copy. Infringing copies are those which are substantially similar to a copyrighted work. Substantial similarity turns upon whether an average lay observer would recognize the copy as having been appropriated from the copyrighted work. Ideal Toy Corp. V. Fab-Lu Ltd. 360 F. 2d 1022 (1966). Another way of stating the test is whether an ordinary observer who is not attempting to discover disparities between the two articles would be disposed to overlook them and regard their aesthetic appeal as the same. The substantial similarity test was developed to prevent a potential infringer from producing a supposedly new and different work simply by making deliberate but trivial variations of specific features of the copyrighted work. Protected copyrights may include visual artistic works such as animated cartoons. Copyright does not protect ideas but rather the tangible expression(s) of those ideas, and includes a requirement that some degree of intellectual labor is required to reflect the author's unique contribution to the protected work's expression. The Walt Disney Company has registered a copyright for certain characters depicted in the animated feature film "The Lion King" (VA 611-201) and recorded that copyright claim with the Customs Service (COP 94-00072). The copyrighted work includes all characters from the film, their coloration and expressions, and provides various poses of the characters as examples. Included among the characters are "Simba" the male lion cub, "Nala" the female lion cub, "Mufasa" the adult male lion and "Sarab" the adult female lion. The Customs Service considers the copyright recordations as prima facie evidence of the copyright claim and enforces that claim as provided in the Customs laws. In the instant case, Customs compared the samples with the protected work registered by Disney. The idea of a lion, as either a cub or an adult, is not protected here, but rather the specific expression embodied by intellectual creativeness of the Disney work. In comparing the items, we find that substantial similarity exists between the sample items and the protected Disney works. The Disney characters show unique expression through the shaping of the animals' head, the shape and position of the ears, nose and eyes, facial expression, and presentation of body features such as a mane or tail. Disney's Simba has unique expressive features which are copied in the "yellow lion cub" items, whether sitting, standing, wearing a hat or accompanied by articles such as the tree or boxes. In each case, the expressive features of Disney's Simba are apparent, such that an average observer would recognize the copy as having been appropriated from the Disney character. Similarly, the Nala, Mufasa and Sarab character features are copied in the "tan lion cub", "male lion" and "female lion" respectively. These items having substantial similarity to the protected Disney works would be considered piratical by Customs if imported. Piratical copies imported in violation of 17 U.S.C. 602(b) and subject to seizure and forfeiture under the provisions of 17 U.S.C. 603(c) HOLDING Each of the 7 designs described above are piratical copies of a registered and recorded copyright (COP 94-00072). These items, if imported, would be subject to seizure and forfeiture under the laws enforced by Customs. Sincerely, John F. Atwood, Chief Intellectual Property Rights Branch