Since the intrinsic test for expression is uniquely suited for determination by the trier of fact, this court must be reluctant to reverse it. See International Luggage Registry v. Avery Products Corp., supra, 541 F.2d at 831; Caddy-Imler Creations, Inc. v. Caddy, 299 F.2d 79, 82 (9 Cir. 1962). As this court said in Williams v. Kaag Manufacturers, Inc., supra, 338 F.2d at 951:
“We have commented frequently on the inappropriateness of substituting our judgment for that of the trial judge on questions of fact. The more vague the test, the less inclined we are to intervene.”
As a finding of fact, a conclusion as to the question of copying is subject to the “clearly erroneous” standard. Fed.R.Civ.P. 52(a). But it follows that this court will be less likely to find clear error when the subjective test for copying of expression has been applied.
The present case demands an even more intrinsic determination because both plaintiffs’ and defendants’ works are directed to an audience of children. This raises the particular factual issue of the impact of the respective works upon the minds and imaginations of young people. As the court said in Ideal Toy Corp. v. Fab-Lu Ltd., 261 F.Supp. 238, 241–42 (S.D.N.Y.1966), aff’d, 360 F.2d 1021 (2 Cir. 1966):
“In applying the test of the average lay observer, [children] are not to be excluded—indeed they are the ‘far-flung faithful … audience.’ The television advertising campaign of plaintiff was directed toward acquainting these youngsters with … its new teenage and pre-teen dolls. The impression of the faces and general appearance of the dolls was upon them. … [T]he dolls create the same impression, both with respect to their appearances and the play—uses for which they are suited. It is the youngsters who, on the basis of this impression, go to the stores with their parents or at home make their wishes known for the dolls they desire after television has made its impact upon them. In their enthusiasm to acquire … [the dolls] they certainly are not bent upon ‘detecting disparities’ or even readily observing upon inspection such fine details as the point at which the necks are molded” (citations and footnotes omitted).
The H. R. Pufnstuf series became the most popular children’s show on Saturday morning television. This success led several manufacturers of children’s goods to use the Pufnstuf characters. It is not surprising, then, that McDonald’s hoped to duplicate this peculiar appeal to children in its commercials.[1] It was in recognition of the subjective and unpredictable nature of children’s responses that defendants opted to recreate the H. R. Pufnstuf format rather than use an original and unproven approach.
Defendants would have this court ignore that intrinsic quality which they recognized to embark on an extrinsic analysis of the two works. For example, in discussing the principal characters—Pufnstuf and Mayor McCheese—defendants point out:
“ ‘Pufnstuf’ wears what can only be described as a yellow and green dragon suit with a blue cummerband from which hangs a medal which says ‘mayor’. ‘McCheese’ wears a version of pink formal dress—‘tails’—with knicker trousers. He has a typical diplomat’s sash on which is written ‘mayor’, the ‘M’ consisting of the McDonald’s trademark of an ‘M’ made of golden arches.”
So not only do defendants remove the characters from the setting, but dissect further to analyze the clothing, colors, features, and
- ↑ McDonald’s advertising campaign was divided into two distinct parts: its general audience advertising and its children advertising. The McDonaldland commercials were used exclusively on children’s programming. The apparent success of this format is suggested by the fact that the McDonaldland commercials are still appearing on television over six years after their introduction.
was doing nearly the same thing. But the fact that it may not have been does not subtract from our analysis.
