Jenner & Block

Firm Wins Final Judgment in Unicorn Copyright Infringement Dispute

The firm won dismissal of a copyright infringement lawsuit brought by sculptor James Croak against Saatchi & Saatchi and Toyota in the Southern District of New York.  Croak claimed that an advertising campaign developed by Saatchi for the 2014 Toyota RAV4 infringed his copyright in a mixed-media sculpture titled “Pegasus, Some Loves Hurt More Than Others.”  The RAV4 campaign features an oversized pink stuffed animal with wings and a horn—a Unicorn-Pegasus hybrid—that is strapped to the roof of a family car.  Croak’s work displays a taxidermied horse with wings, positioned as though it has violently broken through the roof of a classic 60s low-rider car.  In their motion to dismiss, the defendants argued that the works had no protectable expression in common.

Judge Rakoff granted the motion in December 2015, and on March 31 issued an opinion and order dismissing the complaint for lack of substantial similarity.  He noted that Croak had no monopoly on the use of a mythical Pegasus or on the idea of juxtaposing it with the roof of a car.  With regard to protectable expression, Judge Rakoff found that “there is almost nothing similar” between the works.  Contrasting the “lighthearted and playful” mood of the RAV4 campaign with the sense of “raw power, independence, and escape” evoked by Croak’s sculpture, he concluded that no reasonable jury could find that the “total concept and feel” of the works were substantially similar.

The team representing Saatchi & Saatchi and Toyota included Partner Andrew H. Bart and Associate Irene Ten Cate. News of the court’s final judgment was reported in Bloomberg BNA (subscription required).