## Facts

- King Features Syndicate syndicated the comic strip featuring “Barney Google” and a grotesque comic racehorse called “Spark Plug” (also “Sparky”), created by its employee.
- By contract, King Features obtained exclusive rights to the employee’s cartoon productions, including the right to copyright, reproduce, and vend them in its own name.
- King Features published and copyrighted a compilation book, *Barney Google and Spark Plug*, which was widely sold and made the characters familiar to the public.
- Fleischer and others manufactured and sold a toy horse labeled and marketed as “Spark Plug” or “Sparky,” alleged to be an exact reproduction of the horse depicted in the copyrighted cartoons.
- Defendants also used copied drawings of the horse in advertising placed in trade publications and a newspaper.
- The district court granted defendants’ motion to dismiss, and King Features appealed.

## Issues

1. Whether copyright in a published book of cartoons protects the distinctive pictorial depiction of a comic character such that making and selling a three-dimensional toy that copies that depiction constitutes infringement.
2. Whether copying cartoon drawings of the character for advertisements promoting the toy constitutes infringement.
3. Whether reproducing a character’s protected visual expression in a different medium can amount to appropriation of a substantial portion of the copyrighted work.

## Decision

- The Second Circuit reversed the dismissal and held for King Features.
- The court concluded that defendants infringed by manufacturing and selling a toy that was an exact reproduction of the copyrighted depiction of “Spark Plug.”
- The court also found infringement in defendants’ advertising that copied drawings of the character.
- The court treated the challenged conduct as reproduction of a substantial portion of the copyrighted work notwithstanding the change from two-dimensional drawings to a three-dimensional object.

## Legal Principles

- Copyright protection extends to the protected pictorial expression embodied in a cartoon work, including a character’s distinctive visual depiction as presented in the copyrighted work.
- Making a three-dimensional article that copies the protected visual expression of a two-dimensional copyrighted drawing can constitute infringement; a change of medium does not avoid liability.
- Infringement may be established by appropriation of a substantial portion of the copyrighted work; verbatim duplication of the entire work is not required.
- Unauthorized copying of protected drawings for commercial advertising is actionable infringement when it reproduces protected expression from the copyrighted work.

## Conclusion

The Second Circuit held that a copyrighted compilation of cartoons protected the distinctive depiction of the “Spark Plug” character and that defendants infringed by producing an exact three-dimensional toy reproduction and by using copied character drawings in advertisements, reversing the district court’s dismissal.


King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir. 1924)