Toyland Irony: Toy-Versions of Machines have Longer-lasting IP Protection than the Real Thing

In Lanard Toys Ltd. v. Novelty Inc, the Ninth Circuit confirmed that toys are copyrightable as “pictorial, graphic or sculptural works.”  The question at hand was whether a toy helicopter was useful and thus not eligible for copyright, because it depicted something “useful” (a real helicopter) and could also performs some of its functions.  The court deemed the toy helicopter “non-useful,” citing a line of decisions with similar objects such as clown noses (i.e. real noses are useful but clown noses are not).  The bittersweet irony, of course, of this distinction, is that the inventor of a new type of helicopter receives only 20 years of patent protection, while the toymaker who imitates said helicopter gets copyright protection for life plus at least seventy years.