By Joseph A. Farco, Esq. of Farco ToyCo LLC and Norris McLaughlin P.A
As a toy inventor himself, Joe has an extensive experience in advising clients on intellectual property in the toy and gaming space. Joe advises clients on different IP protection methods, such as obtaining the right type of patent on your toy, copyrights and trademarks for different types of toy branding, and licensing and manufacturing deals involving the same. Joe also provides guidance to clients seeking to enter the toy space or produce a particular toy but want to be respectful of the IP rights of others.
While I have spent considerable time talking about patents on toys, it is not the only way to protect the way you play. In most cases, the non-functional aspects of a toy, called “non-utilitarian” aspects or features, can be protected under copyright law.
You Can’t Go Wrong With a Toy Copyright
While I have spent considerable time talking about patents on toys, it is not the only way to protect the way you play. In most cases, the non-functional aspects of a toy, called “non-utilitarian” aspects or features, can be protected under copyright law.
1. Copyrights in toys.
Toys fall into the category of “pictorial, graphic or structural works” under 17 U.S.C. § 101 of the Copyright Act. This is the case even where there is some mechanical or functional element to the toy. Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985) (“transformer” changeable robotic action figures held copyrightable as sculptural works); Gay Toys, Inc., v. Buddy L Corp., 703 F.2d 970, 973 (6th Cir. 1983) (toy airplanes copyrightable despite being “useful articles” because they have no intrinsic utilitarian function other than to portray real airplanes); Spinmaster, Ltd. v. Overbreak LLC, 404 F. Supp. 2d 1097, 1102-04 (N.D. Ill. 2005) (hub, blades, and outer ring of a flying saucer toy were “artistic” elements subject to copyright protection even though motor and main propeller were uncopyrightable “functional” elements); Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 670-72 (3d Cir. 1990) (“animal nose masks” are copyrightable as sculptural works); Rushton v. Vitale, 218 F.2d 434, 436 (2d Cir. 1955) (chimpanzee doll modeled after television character held copyrightable); Boyds Collection, Ltd. v. Bearington Collection, Inc., 365 F.Supp.2d 612, 616-17 (M.D. Pa. 2005) (stuffed bear’s clothing held copyrightable). The key is whether “pictorial, graphic, or sculptural features … can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705 (9th Cir. 2010).
In other words, if your toy has creative aspects to it that are separate and apart from its useful aspects, then you have a good chance of getting your toy registered as a graphic or structural work.
2. What does a toy copyright do for you?
A toy copyright prevents others from reproducing copies of the toy as well as “derivative works” based on that toy. See 17 U.S.C. § 106. However, toy copyright protects the original expression in the toy work, and it is that original expression that is compared to the alleged copycat product.
Those who infringe your toy copyright can be forced to pay damages to you, which can include their profits, your lost profits, and reasonable royalties.
3. Is a copyright worth the expense?
Unlike the costs of patenting a toy, a toy copyright filing is between $50 and $65 and could take an hour or so to prepare and file the same with the U.S. Copyright Office electronically. Toys, dolls, and games are required to be deposited in the Library of Congress in conjunction with your application for registration (usually 2 copies). See Copyright Registration, Circular 2 (https://www.copyright.gov/circs/circ02.pdf, last visited June 12, 2024).
Unlike a patent, you can sue for infringement of your copyright on or after the date that your copyright application either receives an issued certificate of registration or a refusal of registration by the Copyright Office. Copyrights also typically register in much shorter time than patents.
CONCLUSION
If pursuing patents proves unhelpful, do not underestimate the power to protect against copycats through the filing of a toy copyright, which is relatively inexpensive, quick, and just as much a tool to stop people from stealing the way you play.
