Croak v. Saatchi & Saatchi, North America, Inc., No. 15 Civ. 7201 (S.D.N.Y. Mar. 31, 2016)
James Croak created a sculpture, “Pegasus, Some Loves Hurt More Than Others,” a mixed-media, life- sized work that was first exhibited in 1983. The sculpture “depicts a winged, taxidermied horse that appears to be in the process of breaking through the roof of a sleek lowrider, as if about to take flight.”The voiceover narrates: “This is Lady. She’s a unicorn. And a Pegasus. And why is she strapped to the roof of my RAV4? Well if you have kids, then you know why. Now the real question. Where’s this going in the house? The RAV4. Toyota. Let’s go places.” The image also appeared in a print ad and a display featuring the stuffed animal at the 2015 Chicago Auto Show.
Croak sued for copyright infringement, but the court found that the only similarity was that of idea, not expression, as a matter of law. “Indeed, the disparities between the works in terms of their authors’ creative choices and their total concept and overall feel overwhelm any superficial similarities.” Croak’s pegasus was “strikingly realistic and life-like”; defendants’ was “a pink, smiling, oversized stuffed animal,” different from a life-like pegasus “in virtually all respects, including appearance and posture.…It appears to be a child’s toy because it is a child’s toy.” The cars in the works were also “highly dissimilar.” Croak’s featured a vintage lowrider, half red and half blue, that “exudes cool” (the court discussed the cultural significance of the lowrider in a footnote), while the RAV4 was “a modern, family-friendly SUV in a glossy blue…. No one could reasonably view them as sharing an aesthetic appeal.” Nor were they presented to the viewer in the same way:
The Pegasus in the Sculpture is presented as bursting forcefully through the roof of a now severely damaged car, as it unfurls its body in preparation for flight. It radiates exertion, dynamism, and sheer power. In contrast, defendants’ Pegasus is strapped to the intact roof of an SUV and carries no suggestion of life, movement, or vitality.
The stuffed animal wasn’t free to move—it was pretty clearly strapped to the car in the TV ad, and the narrator reinforced that impression, and even in the Chicago Auto Show display the staging was “radically different.” The settings were also “strikingly different”: “The smoke billowing in the background of the Sculpture is in stark contrast to the sunny, suburban setting” of the TV ad or the setting of the Chicago Auto Show. The court refused to “focus on a laundry list of technical similarities (as opposed to disparities) that an ordinary observer would be disposed to overlook.” These technical similarities—the pegasuses were soft, the cars hard, etc.—“have little to no effect on the aesthetic appeal of a given work, and … pale in comparison to the works’ disparities,” particularly the taxidermied animal v. child’s toy impression.
No reasonable jury could find similarity in the “total concept and overall feel” of the works. Defendants’ works “evoke feelings of warmth, family, and fun,” while Croak’s sculpture “evokes raw power, independence, and escape. It depicts the supernatural by animating a mythological creature, while defendants’ works are situated in the real world.” Croak’s sculpture could be interpreted in different ways; in the nature of art, “[s]ome might see violence where others perceive spirit…. But no reasonable juror would find the Sculpture light-hearted in nature, evoking family and children.”