Academic journal article Defense Counsel Journal

Copyrights: Publisher May Assert Fair Use of Beanie Babies' Images

Academic journal article Defense Counsel Journal

Copyrights: Publisher May Assert Fair Use of Beanie Babies' Images

Article excerpt

The Seventh Circuit has held that a publisher of books that feature the once wildly popular Beanie Babies has a right to present the fair use defense in the manufacturer's copyright infringement suit. Reversing a permanent injunction against the publisher and a damages award of $1.36 million in favor of Ty Inc., the manufacturer of stuffed toy animals, the court also was critical of Ty's attempts to use licensing agreements to control what is said about its products in collector's guides. Ty Inc. v. Publications International Ltd., 292 F.3d 512 (7th Cir. 2002).

Ty had copyrighted the toys as "sculptured works" under 17 U.S.C. It filed a copyright and trademark infringement action against PIL, which produced a series of books with titles such as For the Love of Beanie Babies and Beanie Babies Collector's Guide. The books contained text and photographs of the small stuffed critters. On Ty's motion for summary judgment, the district court rejected PIL's fair use defense in the copyright aspect of the suit, issued a permanent injunction against the company, awarded the publisher's profits from the sale of the books to Ty, and added more than $200,000 in prejudgment interest. 2000 U.S. Dist. Lexis 15382.

On appeal, the Seventh Circuit agreed with PIL that it was entitled to present the fair use defense. In an opinion by Judge Posner, the court noted that copying portions of a copyrighted work that is complementary to the work, such as a book review or parody that is not a substitute for the work, is a fair use. If Ty, as the copyright owner, did not hold the right to derivative works, then PIL's books would clearly be considered complementary so that their publication would be sheltered by the fair use defense, Posner stated. …

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