788 THE ADVOCATE
VOL. 80 PART 5 SEPTEMBER 2022
Once upon a time, in lands far, far away, lived strange but cuddly creatures
that became involved in a struggle for identity. In “Whatland,”
which is just a few miles north of Fairyland, lived the “Whats.” In the
“Land of Wuz” lived the “Wuzzles.” We don’t know where “Wuz” was, but
we are told we could get there if we “snuzzle a Wuzzle.” It appears that for
a time, never the two did meet. But one day the creators of the “Whats”
discovered the “Wuzzles” and were astonished to learn that “Whats” and
“Wuzzles” had certain similarities. Most specifically, it seems each “What”
and “Wuzzle” had the names and characteristics of two different animals
combined into one. In “Whatland,” there was “Me-ouse” (a mouse and cat
combined), “Wissh” (a walrus and seal), “Chuck” (a chicken and duck),
“Skeet” (a skunk and parakeet), “Pea-tur” (a peacock and turkey), “Giritch”
(a giraffe and ostrich), “Leo-Lamo” (a lion and lamb), and “Beav-aire”
(a beaver and bear). The “Wuzzles” included “Moosel” (a moose and seal),
“Butterbear” (a butterfly and bear), “Hoppopotamus” (a rabbit and hippopotamus),
“Eleroo” (an elephant and Kangaroo), “Rhinokey” (a rhinoceros
and monkey), and “Bumblelion” (a bumblebee and lion).
Our story now moves to its sad conclusion. The creators of the “Whats,”
who were protected by copyright, were outraged and thought that the creators
of the “Wuzzles” had stolen their idea. A lawsuit broke out, with the
plaintiffs, creators of the “Whats,” alleging violation of the federal copyright
laws and unjust enrichment. The defendants, creators of the “Wuzzles,”
have moved for summary judgment, as well as attorney’s fees and sanctions
… for plaintiffs’ pursuit of allegedly frivolous and vexatious litigation.
This battle on high between creators has filtered down to us in this
“What”-less and “Wuzzle”-less Land of White Plains. The questions before
us are really quite simple: Just what’s a “What,” what’s the similarity
between a “What” and a “Wuzzle,” and “Wuzzle” we do about it?
...
On defendants’ various motions, we find that:
(1) there “wuzn’t” substantial similarity between the “Whats” and the
“Wuzzles,” and summary judgment on the copyright infringement claim
is granted;
(2) plaintiffs’ cause of action in quasicontract “wuz” preempted by the
federal copyright laws and grant defendants’ motion for summary judgment
on that claim; and
(3) this action “wuzn’t” sufficiently frivolous or vexatious so as to warrant
attorney’s fees or sanctions, and defendants’ motions for such are denied.
The judge added in an endnote:
We suspect that plaintiffs’ true frustration in this case grows from a belief
that corporate giants have “stolen” their idea. Not only do we find that this
isn’t so and that the copyright laws do not protect the idea itself, but, with
all due respect to the parties, the concept of combining two animal forms
is hardly novel or unique. Pegasus, the winged horse, was a product of
Greek mythology. It may not have been the first such character, and it
certainly was not the last. We note, for example, the Griffin, often
depicted in crests, which combines an eagle with a lion. The point, how-