This 2004 case is about copyright of the design elements of miniature motorcycles.

KIKKER 5150 and KELLY KIKKERT, Plaintiffs, v. KIKKER 5150 USA, LLC, et al., Defendants.
No. C 03-05515 SI

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 16859; Copy. L. Rep. (CCH) P28,895

Decided – August 13, 2004
Opinion by district Judge Susan Illston:

This case concerns copyrights in miniature working motorcycles. Plaintiffs Kikker 5150 and Kelly Kikkert filed their complaint on December 8, 2003 against Kikker 5150 USA, Mark Gholson, and others (defendants or counterclaimants).

At issue is the design element of miniature motorcycles. Not toys, miniature-sized, functional motor vehicles.

defendants argue that “a Formula One race car is no more copyrightable than a Ford Escort and plaintiffs’ miniature motorcycles are no more copyrightable than a Harley-Davidson Heritage Softail or a Kawasaki Ninja.” As useful articles, defendants argue, plaintiffs’ miniature motorcycles are precluded from copyright protection.

The Court mostly agrees:

The Court finds that the miniature motorcycles are useful articles and therefore not eligible for copyright protection as such.

But,

The Court also finds, however, for the reasons discussed below, that there are genuine issues of fact concerning whether various “design elements” of the motorcycles “can be identified separately and are capable of existing independently as a work of art.”

The Court cites Fabrica Inc. v. El Dorado Corp., 697 F2d 890, 893 (9th Cir. 1983) which is a case about competing carpet companies and the potentially unfair use of a similar sales system, though the functional elements of are not copyrightable some aesthetic aspects may still be protected.

Therefore,

For this reason, defendant’s motion for summary judgment must be denied.

Summarizing:

Defendants argue that the motorcycles at issue are not copyrightable and ask the Court to issue a preliminary injunction or an order to show cause why a preliminary injunction should not issue. The Court finds that the motorcycles themselves are not copyrightable, since the motorcycles are useful articles and are not subject to copyright protection. However, since the Certificates of Copyright described the nature of the works as “three-dimensional, sculptural features and design elements of miniature motorcycles,” and since the Court cannot say as a matter of law that the design elements of the motorcycles are not severable and original, the Court declines to grant the motion to summarily adjudicate the copyrights’ invalidity.

No restraining orders where issued and so the case continued, presumably to be settled because I see no subsequent published case history.

Here the Court is quoting the defendant’s reply brief to mention the Ford Escort, the Harley-Davidson Heritage Softail and the Kawasaki Ninja. And we’ve seen mentions of the Kawasaki Ninja already in the NinjaLaw Court record . The Heritage Softail appears is four Federal Opinions and the Kikker 5150 case is its second appearance, the prior also being an intellectual property case. In contrast this is the first use of the Kawasaki Ninja in an IP case and the prior cases were all mentions of the actual bike. And the Ford Escort appears in over 300 cases beginning in the early 80s.

Note: here’s a warning about the dangers of Kikker bikes

Ultimately, this Kikker 5150 case stands for principles of copyright in toys – that is, that toys are copyrightable as to the aspects that are not part of the usable functions specifically. So it is fitting that “ninja” is mentioned here, because as we know from ninja law, “ninja” is strongly related to toys.

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