The use of a bird’s furcula, or “wishbone,” for divination purposes dates back to the ancient Etruscans, and the ritual of two people pulling on the furcula to determine who would get married first has its origins in late medieval Europe. From there, some version of the custom likely was brought to America by the pilgrims, who would have referred to the bone as a “merrythought.” Given all that history, the modern tradition of pulling the Thanksgiving turkey wishbone for luck is hardly original.
But what about the originality of the wishbone itself? Could a plastic wishbone sculpture, based on something found in nature, nevertheless be original enough for copyright protection? Yes, according to the Ninth Circuit in Lucky Break Wishbone Corp. v. Sears, Roebuck & Co.
“It’s Time You Got a Lucky Break”
In 1999, Ken Ahroni was sitting around the table after Thanksgiving dinner when he came up with the idea for a wishbone “for the masses so everybody, including vegetarians” would get to make a wish on Thanksgiving. Using as a model the turkey wishbone from that very meal, Ahroni started to design what was to become a “revolutionary advance in plastic wishbone technology,” the Lucky Break Wishbone.
As a first step, Ahroni had a three-dimensional scan of one side of the bone created. Then a designer worked with that scan to create a computer model of the full two-sided wishbone. From that computer model, the designer created graphite electrode models using a computer-aided cutting system. These electrodes were manually altered to achieve the right look and then used to create molds from metal blocks, which in turn were used to create a plastic wishbone prototype.
In 2005, after he created the prototype, Ahroni was approached by an advertising agency working for Sears, Roebuck & Company, which was considering using plastic wishbones for a Thanksgiving-time promotion in its department stores. Lured by the enticing prospect of a million-unit sale, Ahroni provided Sears with some sample wishbones made from his prototype molds. However, instead of purchasing wishbones from Ahroni, Sears passed on Ahroni’s samples to a Chinese manufacturer. When Thanksgiving rolled around, Sears gave out over one million plastic wishbones to its customers, all made by the Chinese company.
The Originality Analysis
In 2006, Ahroni filed suit for copyright infringement in the Western District of Washington. The most interesting issue in the case was whether a sculpture made to resemble a specific feature of avian anatomy could be the proper subject for copyright protection. In order for an author to copyright a work, the work must be original. For copyright purposes, the term “original” has two elements. First, it must be independently created, which means that the author’s contribution cannot be a mere slavish copy of something else. Second, that authorial contribution must possess some minimal degree of creativity or, as the Supreme Court once described it, “some creative spark, no matter how crude, humble or obvious.”
Sears argued that Ahroni’s Lucky Break Wishbone was no more than a plastic reproduction of a naturally occurring item, and as such could not be protected by copyright. In denying summary judgment, the District Court disagreed with Sears. The Court acknowledged that objects found in nature are in the public domain and can not be copyrighted. However, the fact that an author bases a creative work on a naturally occurring object does not preclude a finding of originality where there is evidence that the author added some creative contribution.
Here, Ahroni presented evidence that, during the various stages of the production process, the designer made several non-utilitarian aesthetic contributions to the prototype in order to create an object that was sleeker and more attractive than a natural wishbone. The goal was not to replicate the wishbone from Ahroni’s 1999 Thanksgiving, but rather to create the idealized “image of the perfect wishbone.” In further support of his argument, an expert ornithologist from the Florida Museum of Natural History opined that the Lucky Break Wishbone included seven osteological features that would not be found in nature, but rather were “of distinctly human creation or design.” These included the curve of the clavicles (i.e., the “legs”), the bilateral symmetry of the surface indentation, and certain smooth surfaces.
Based on the foregoing, the District Court held that the Lucky Break Wishbone was a work of independent authorial creation with just enough creativity to meet the “extremely low” standard for a “thin” copyright protection. The Court went on to explain that, under Ninth Circuit precedent, a defendant’s work must be “virtually identical” to the plaintiff’s work in order to infringe a “thin” copyright. Here, however, the Court felt there were genuine issues of material fact as to whether Sears’ wishbone was “virtually identical” to the Lucky Break prototype. The Court’s analysis was probably also influenced by the admission that the Chinese company was using Ahroni’s prototype as a “size reference” while designing the Sears wishbone, and by the fact that Sears also copied certain text from the product packaging of the Lucky Break product.
After summary judgment was denied, the case eventually went to trial. The jury saw things pretty much the same way and awarded Ahroni approximately $1.7 million in damages. In 2009, the Ninth Circuit affirmed.
Thanks to Ken Ahroni and Lucky Break Wishbone for letting us use some of their photographs for this post. You can still get a Lucky Break Wishbone at http://www.luckybreakwishbone.com/.