Last Friday, a federal district court in Michigan dismissed the complaint of Richard Pollick, the alleged creator of “diaper jeans,” i.e., disposable baby diapers designed to look like jeans (truly, an invention on par with the piano key neck tie). Pollick registered a copyright for his “Diaper Jeans artwork” in February 1981 and sent the design to Kimberly-Clark Corp. later that year. Kimberly-Clark Corp. eventually started selling Huggies “Jeans Diapers,” and Pollick filed a lawsuit.
Amazingly, this is the second bathroom-related infringement lawsuit to cross our path at Law Law Land in the last few months, proof that you are never truly safe, even on the comfort of your own commode. Unfortunately for Pollick, however, the court took one whiff of his claim and tossed it, ruling that “a simple visual comparison shows that not only are the diapers not substantially similar, they are substantially different….”
Let’s take a look at the evidence.
Diaper Designs Not Substantially Similar
These diapers have different colors, different patterns, different color stitching, different pocket designs, different numbers of pockets, only one has belt loops, etcetera, etcetera, etcetera. As the court observed, the complaint was at worst “frivolous,” and at best, “plainly objectively unreasonable.” But more importantly, the court gave Pollick a lesson in the law of ideas:
“Plaintiff asserts that ‘he is asserting rights over the creative expression of diapers designed to resemble jeans.’ Plaintiff’s copyright, however, does not confer the protection Plaintiff claims. That is, it does not give Plaintiff a broad right to exclude others from manufacturing diapers that are ‘designed to resemble jeans.’ Rather, it protects the much narrower right to exclude others from producing ‘substantially similar’ versions of diaper jeans — those that versions so similar that ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.’”
The court provided two other good examples of how copyright protection does not extend to the underlying idea — only the expression of the idea. First, in a 1995 case, a man who designed jeans and caps to resemble cow’s hide could not sue Ben and Jerry’s for selling hats which were also designed to look like cow’s hide. Second, in a 1977 case, a woman who registered copyrights for “toe socks” could not prevent a defendant from selling competing toe socks. (Maybe we finally have someone to blame for those heinous toe running shoes.)
At Law Law Land, the distinction between ideas and expression is one of our constant runningthemes. As early as 1918, U.S. Supreme Court Justice Louis Brandeis said that “the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use.” And now, we are reminded that these noble human productions can be found even on a baby’s rear-end (and, I suppose, the closets of the tragically fashion-challenged).