Inflatable Gorilla Sues Google Over Copyright?

from the inflatable-insanity dept

Wed, Oct 13th 2010 9:26am — Mike Masnick

The latest in bizarre copyright lawsuits comes to us thanks to Eric Goldman, who tells the story of the inflatable gorilla company, Scherba, that is suing Google. Why? Because it claims to have a copyright on its inflatable gorillas, seen here:

And, Google dared to run an advertisement that included said gorilla (or one that looks very, very similar) shown here:

And, alas, Scherba is so upset about the use of one of their inflatable gorillas in an ad that it's suing Google. I'm still trying to figure out how this is possibly a copyright lawsuit rather than a trademark one. Can you imagine if you had to get permission from the original manufacturer of every product you used in an advertisement? Think about any ad depicting an office scene or a kitchen scene. It would be a nightmare. Goldman further points out that the Scherba gorilla appears to have more than a passing resemblance to King Kong, and wonders if Google might try to fight back, and try to bust the overall copyright on the inflatable gorilla as bogus.

Still, the bigger question for me is what exactly does Scherba believe it's "lost" here, that it needs to sue Google? It's not as if the ad is somehow going to be a substitute for actually buying inflatable gorillas.

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Filed Under: copyright, inflatable gorilla
Companies: google, scherba

28 Comments

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Anonymous Coward, 13 Oct 2010 @ 10:08am

Should it really be a trademark lawsuit as you suggest?

While copyright only covers specific expressions, trademarks tend to have greater breadth and might therefore apply to a larger set of all possible forms of inflatable gorillas. Should Scherba be the only company allowed to make these gorillas? Except in cases where it would constitute copyright infringement, my view is that it shouldn't be. Trademarks should be reserved for things like logos and other identifying marks rather than the design of the products themselves (except, perhaps, in cases where the product's appearance has nothing to do with its purpose).
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Anonymous Coward, 13 Oct 2010 @ 10:08am

well
hate to say it but at least this time it looks like they verbatim copied there lil doll....and ya don't do that now a days do we....
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ChurchHatesTucker (profile), 13 Oct 2010 @ 10:21am

This is why people think Trademark is IP
"I'm still trying to figure out how this is possibly a copyright lawsuit rather than a trademark one. Can you imagine if you had to get permission from the original manufacturer of every product you used in an advertisement?"

Like if you wanted to do a documentary and The Simpsons was playing on a TV in the background? Yeah, that was a trademark claim, but what's the difference (to the sueee) what the claim is based on? You only have a potentially plausible defense walking into it.
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Jay (profile), 13 Oct 2010 @ 10:26am

Nintendo vs MGM all over again?
"Goldman further points out that the Scherba gorilla appears to have more than a passing resemblance to King Kong, and wonders if Google might try to fight back, and try to bust the overall copyright on the inflatable gorilla as bogus. "

It's going to be funny if this one actually does go to court.

MGM sued against Nintendo back in the 80s for the exact same thing. Donkey Kong truly is an icon today in his own right.

Didn't know that Scherba forgot its history.
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brendan, 13 Oct 2010 @ 10:27am

promo?
Wouldn't it make way more sense to instead promote your product from the free ad? Hey, big G used our monkey, you should too!
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Anonymous Coward, 13 Oct 2010 @ 10:45am

That blue gorilla is actually pretty cool!
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Daddy Warbucks, 13 Oct 2010 @ 10:51am

Gorilla Marketing
Sounds like they want the publicity...start the inflatable wavy thing.
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Keybored, 13 Oct 2010 @ 10:51am

Re: promo?
Exactly right. WTF is the matter with these people? This is clearly an opportunity to sell sell sell not sue sue sue...
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Anonymous Coward, 13 Oct 2010 @ 11:09am

King Kong size fail in the future?
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j0n35y (profile), 13 Oct 2010 @ 11:20am

3D versus 2D
What I am wondering about is that the original Copyright that was filed was based on a 3D sculpture, which obviously Google did not use in their add since it is only in print.
From what I can gather, their only case would be if Google used some sort of pop-up 3D gorilla in the add...
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ChurchHatesTucker (profile), 13 Oct 2010 @ 11:28am

Re: 3D versus 2D
"What I am wondering about is that the original Copyright that was filed was based on a 3D sculpture, which obviously Google did not use in their add since it is only in print."

Yeah, but then you get into 'derivative works.' That's the worst part of copyright as it currently stands (barring the lengths, of course.) Artists (commercial or otherwise) need to be able to riff of the giants they stand upon, as they did before them.
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Brad Hubbard (profile), 13 Oct 2010 @ 11:39am

Free publicity
Clearly by not suing, they've lost a chance at some free publicity.
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MrWilson, 13 Oct 2010 @ 11:54am

Re: Re: promo?
It's a matter of work ethic.

If you decide to go the sell sell sell route, your salespeople have to actually do their jobs.

If you decide to go the sue sue sue route, you pay a law firm to take care of it and hope that the settlement or judgment in your favor covers both the cost and something extra for the bruised ego.
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DJ (profile), 13 Oct 2010 @ 11:56am

Re:
Way to miss the point! The question of whether this would be a trademark or copyright suit isn't the point.

The point is "what exactly does Scherba believe it's 'lost' here, that it needs to sue Google?"
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DJ (profile), 13 Oct 2010 @ 12:00pm

Re: Re: Re: promo?
"If you decide to go the sue sue sue route, you pay a law firm"

and that's the problem with today's businesses. They'd rather PAY money on a shot that they MIGHT make more back, instead of use FREE advertising. This type of practice is NOT capitalistic it is imperialistic; they are NOT the same.
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DJ (profile), 13 Oct 2010 @ 12:01pm

Re:
So go buy one. Help prove to Scherba that inadvertent advertising works.
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DJ (profile), 13 Oct 2010 @ 12:05pm

Re: Free publicity
Umm, they already HAVE the publicity. The question is what are they going to do with it?

Will they CAPITALIZE (i.e. capitalism) on it and make a profit?

Or will they try to TAKE money AWAY from another company? (i.e. imperialism)
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Anonymous Coward, 13 Oct 2010 @ 12:08pm

Re: Re:
Considering trademark vs copyright is one of the points Masnick raised, I feel perfectly justified in addressing that particular point. That you would like me to focus on a different point matters little to me even if I do indeed recognize it wasn't Masnick's main point. Luckily for me, you don't get to choose which of Masnick's points I get to address.

Thank you for your feedback, though.
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Gracey (profile), 13 Oct 2010 @ 12:39pm

Do you suppose there's a chance they bought this gorillia? I mean...do an image search and you'll find a lot of these, some that look pretty similar.

http://www.ameramark.com/inflatable_character_animals.htm
http://www.1800greatad.com/cu stomballoons.htm

If you can buy these things to advertise your business, then I'm not sure exactly what the issue would be here. If they bought it and stuck it on top of their corporate offices, would Scherba still be complaining?
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a-dub (profile), 13 Oct 2010 @ 12:54pm

Googles free advertising wasnt enough...suing Google will give them even more attention but now it just makes the gorilla people look bad.
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DJ (profile), 13 Oct 2010 @ 1:26pm

Re: Re: Re:
Interesting tactic: make me seem like the bad guy for pointing out that you are focusing in on a topic that, as you admit, isn't the actual point of the statement. It's such an effective tactic, in fact, that it's the basis behind ALL magic tricks; it's called misdirection. What I would or would not "like" is also NOT the topic. Please stay on topic "Mr. Senator".
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David Liu, 13 Oct 2010 @ 1:51pm

Re: Re: Re: Re:
It's not like we can't have conversations on both at the same time. Is it somehow detrimental to have a thread about whether it should be a copyright or trademark lawsuit? No it isn't, since you can also have a thread right along side it talking about whether Scherba has lost anything from Google's ad.
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DJ (profile), 13 Oct 2010 @ 5:18pm

Re: Re: Re: Re: Re:
That is absolutely true. However, intentionally focusing on a minor point while completely disregarding/discounting the main point is a bit thoughtless.

But, again, we digress.
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MrWilson, 13 Oct 2010 @ 7:21pm

Re: Re: Re: Re: promo?
"This type of practice is NOT capitalistic it is imperialistic; they are NOT the same."

That's right boy. This is manifest destiny. God told us we could screw you over in the way we run our business. It's why Jesus overturned the tables of the money changers at the temple. He didn't want competition. Now be a good little red and say something commie-like so I can get the John Birch Soc... I mean, say something terrarist-like so I can get the Tea Party to protest you!
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Anonymous Coward, 15 Oct 2010 @ 10:45am

This seems like a cut and dried case of copyright infringement to me. Why wouldn't it be? Trademark seems like a much bigger stretch.
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Anonymous Coward, 15 Oct 2010 @ 10:50am

Re: 3D versus 2D
That's not how copyright works.
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Anonymous Coward, 15 Oct 2010 @ 10:51am

Re: Re: Re: Re:
Just going to chime in here and say he's right, you don't get to decide which of Masnick's points are fair game to discuss.

He made the copyright/trademark point, and even if you don't care about it, others do.
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Anonymous Coward, 15 Oct 2010 @ 10:53am

Re:
Buying a physical object =/= copying (so no infringement).

Photographing and republishing = copying
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