This summer, the competition for popcorn popping mobile apps heated up as the creators of “Perfect Popcorn” and “iMunchies” battled over copyright infringement claims. On July 18, 2016, a judge in the Northern District of California denied a motion to dismiss the claims, allowing the question of whether or not these apps offer substantially similar virtual depictions of popcorn to go forward.
Diamond Foods, Inc. and Hottrix LLC both offer apps which depict popcorn popping on a mobile device. Diamond Foods’ app, Perfect Popcorn, is designed to prevent popcorn eaters from burning their popcorn; the app functions as a timer, which shows popcorn popping inside a virtual bag on the screen and then tells users precisely when to remove their real bag from the microwave. In contrast, the Hottrix app, iMunchies, is more of a game than culinary tool; the app allows users to choose various snack foods (including popcorn) and perform tricks with them (such as mimicking reaching into the popcorn bag and removing popcorn). In 2014, after Hottrix allegedly threatened legal action, Diamond Foods brought a declaratory judgment complaint seeking a declaration of non-infringement. Hottrix brought counterclaims, and Diamond Foods moved to dismiss the counterclaims.
Hottrix argued that nine elements of its iMunchies app are protectable under copyright law. Therefore, the Court considered whether copyright law protects “(1) the approximately white color and fully popped shape of the kernels; (2) the use of only a few identical images to depict popped kernels; (3) the sequential popping of the kernels; (4) showing each popped kernel as it pops; (5) the shallowness of the virtual container, which is only two to three popped kernels deep; (6) the vertical orientation of the virtual container; (7) displaying popped kernels as the same size, regardless of their distance from the viewer; (8) bright lighting that appears to illuminate the popped kernels from the same direction regardless of the kernel’s movement; and (9) the perspective of looking straight into the side of the virtual container.”
The Court’s Ruling
The Court held the mere idea of popcorn popping on a mobile device, and elements of expression that naturally follow from that idea, were not protectable. However, expressive elements that did not “naturally follow” from that idea would be protectable. With that in mind, the Court held that only four elements could be protectable on their own: (1) the sequential popping of the kernels; (2) the visibility of popped kernels when they pop; (3) the consistent size of popped kernels independent of distance; and (4) consistent lighting. The Court also noted that the combination of both protectable and unprotectable elements could be copyrightable, even if each element was not independently copyrightable.
Based on the foregoing, the Court ultimately allowed the copyright infringement claims to survive on the grounds that it was impossible to objectively determine the substantial similarity of such moving images on a small screen. If the case proceeds to a jury trial, the jury will decide how the apps would be subjectively experienced by an ordinary, reasonable person.
App developers should consider the potential risks of copyright disputes arising from the visuals incorporated into new apps. This is not the first time that Hottrix in particular has been involved in litigation over mobile app images. In 2008, Hottrix sued Molson Coors in the Central District of California over an app that simulated virtually drinking a beer and, in 2010, Hottrix alleged in the Middle District of Pennsylvania that Hershey’s chocolate milk iPhone application infringed the Hottrix “iMilk” app, which simulated the virtual consumption of a glass of milk. Unlike the Diamond Foods dispute, both prior cases settled relatively quickly.