Archives for posts with tag: design

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

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.


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.


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


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.

This NinjaLaw post is about a case that has no real reason to include “ninja”. It is a wonderful example of how characters become metaphors used in the law. Here ninja is a mere throw-away reference but it helps to firmly root the word in a world of computer programming. This case involves a type of wood truss design software that is alleged to violate copyright by similarities in user interface. Presumably the ninja reference is about a specific software but I am not sure which one.

Case No. 91-2629-CIV-MOORE
864 F. Supp. 1568
Decided September 9, 1994, and amended Oct 31, 1994

and affirmed in 1996

The district court opinion by Judge K. Michael Moore explains Learned Hands idea of “breaking down a literary work into its elements as a means of separating a writer’s ideas from his expression”, (See Nichols v Universal Pictures Corp) but

Judge Hand’s abstraction test is not as easily applied to computer programs as it is to literary works, such as books or films, because the mediums are so different. Unlike a computer program, the copyrightability of a film applies solely to its “user-interface,” that is the images and sounds the viewer perceives. In contrast, a computer program has two distinct elements of expression – the literal aspects, including the source code and object code, which tell the computer what to do, and the nonliteral aspects, such as the sights and sounds the program generates on the screen. The Gates Rubber case sets forth a uniform, six-part abstraction test for breaking down a computer program’s literal elements. Gates Rubber, at 835. However, this test is not helpful for this Court’s analysis, which focuses on the nonliteral elements of the program.

[Footnote #8]: The Gates Rubber court states that a computer program can be broken down into six levels of declining abstraction: (1) the main purpose, (2) the program structure or architecture, (3) the modules, (4) algorithms and data structures, (5) source code, and (6) object code. Id. at 835, citing John W.L. Ogilvie, Defining Computer Program Parts Under Learned Hand’s Abstractions Test in Software Copyright Infringement Cases, 91 Mich.L.Rev. 526 (1992). [End Footnote]

The Fifth Circuit in Engineering Dynamics provided some guidance for the abstraction of nonliteral elements of a computer program. The court found that there is a “spectrum” of copyrightable material in nonliteral elements of computer programs, ranging from the ‘blank form’ that epitomizes an uncopyrightable idea, through a “high expression, like that found in some computerized video games.” Engineering Dynamics, at 1344. The court found that “in the middle of the abstraction spectrum sit user interfaces such as that of Lotus 1-2-3, whose menu structure, including its long prompts, contains numerous expressive features.” Id. at 9-10, citing Lotus I, 740 F. Supp. at 65-66. Thus, the distinctive garb of a computer-generated Ninja will be afforded the highest copyright protection, while a simple computer prompt asking the user to fill in the blank warrants the least. In the middle, are programs which require the input of significant amounts of information in a common, computer format. The Court finds the programs at issue in this case fall into this middle range of expression.

Once a program has been broken down into its abstract elements, the next step is to “filter out” the unprotectable elements to obtain a core of protectable expression. In addition to ideas, copyright protection is not afforded to processes, methods or scientific discoveries. Other materials not subject to copyright include facts, information in the public domain, and scenes a faire, i.e., expressions that are common to a particular subject matter or are dictated by external factors. Engineering Dynamics, at 1343.

[Footnote #9]: Elements taken from the public domain are not protected by copyright law because they are not “original works of authorship” under the Copyright Act of 1976. 17 U.S.C. ยง 102(a). [End Footnote]

[Footnote #10]: For example, scenes of pitching, home runs and cheering crowds appearing in a movie about baseball would not be copyrightable because they are necessarily incidental to the subject. [End Footnote]

The Court decided that the elements of this software were not protectable under copyright. This case is important to early computer law and is often mentioned along with the Lotus v Borland decision.

It is interesting to note that this court finds the distinctiveness of a ninja’s garb to be of the highest copyright protectability while meanwhile contemporaneous courts used the word as a descriptor: See NinjaLaw posts about Ninja Pants, and Ninja hood, and ninja-style motorcycle.