Inflatable Giant Gorilla Attacks Google (for Copyright Infringement)–Scherba v. Google

By Eric Goldman

Scherba Industries v. Google, Inc., 1:10-cv-02288 (N.D. Ohio complaint filed Oct. 7, 2010).

Scherba makes giant inflatable gorillas. See an example. A little improbably, it has a copyright registration for a 3D sculptural work called “Gorilla Inflatable”–the work being its inflatable product blown up.

Recently, Google ran an ad campaign promoting its AdWords service in periodicals like Entrepreneur and Crain’s Cleveland Business. The ad copy includes a picture of a large inflatable gorilla that looks very, very similar to Scherba’s gorilla. Google shows the inflatable gorilla as an apparent advertiser alternative to AdWords–either you can put your ad on top of an inflatable gorilla (a poor choice), or you can place your ads with Google (a good choice). (Perhaps ironically, many critics would disparage Google as the 800 pound gorilla of online advertising). The ad copy doesn’t identify the gorilla.

So Scherba sued Google for copyright infringement for showing the picture of an inflated gorilla in its ad copy. All morning, I’ve been scratching my head trying to puzzle through the issues. Some questions:

* is the depicted gorilla actually a picture of Scherba’s inflatable gorilla, or could it be someone else’s? Even if it’s Scherba’s, the gorilla has strong resemblances to King Kong, which in turn has a murky ownership, making me wonder exactly what Scherba owns, what’s owned by one of the many claimants to King Kong, and what’s in the public domain. If Google fights this, Google might try to bust the copyright.

* The complaint only makes a copyright claim (plus related claims for injunctive relief and a declaratory judgment) but conspicuously does not plead trademark infringement. This makes sense because Google didn’t reference the Scherba brand in the ad copy, and Scherba’s product almost certainly lacks secondary meaning enough to support trade dress protection.

* can Google take advantage of 17 USC 113(c)? Among other things, 113(c) allows retailers and distributors to take product shots of the goods they are selling and use those shots in advertising. (For more discussion on 113(c), see this post). Specifically, the statute permits photos of sculptural works “in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.” Google might argue that it’s commenting upon the effectiveness of using inflatable gorillas for advertising purposes; otherwise, the 113(c) defense may not apply.

* Can Google successfully claim fair use? Fair use defenses are always dicey for ad copy, and this isn’t really a parody (although it might be a commentary). Even so, Google’s usage of the copyright is so inconsequential/chickenscratch that some judges will not be sympathetic to Scherba.

* If Google did in fact infringe on Scherba’s copyright, how did the error happen? One possibility: it never occurred to Google that any manufacturer of inflatable gorillas would claim a copyright over the product design. That’s not exactly intuitive.

For advertisers, this lawsuit is a good reminder to thoroughly vet every graphical element of the ad copy. Be careful out there; it’s a gorilla-eat-gorilla world.