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Cartoon Network Lawsuit Alleges 'Annoying' Copyright Violation

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By Betty Wang, JD on May 23, 2013 12:01 PM

In a Cartoon Network lawsuit, a North Dakota advertising agency alleges copyright infringement by the creators of a show called "Annoying Orange."

Ad agency H2M says "Annoying Orange" creators Dane Boedigheimer and Spencer Grove stole the image and likeness of a talking orange character from a copyrighted H2M character called "The Talking Orange."

This begs the question: Orange they glad their talking orange idea caught on? Apparently not.

The 'Fruit' of Creative Efforts

H2M's "Talking Orange" is featured in a commercial created for the North Dakota Department of Transportation. And it just so happens that both Boedigheimer and Grove are also from North Dakota.

You can watch both videos for "Talking Orange" and "Annoying Orange" below:

As you can see, both videos are comprised of a talking orange that has a human mouth. And as noted in the lawsuit, as reported by the Associated Press, both oranges also appear to be speaking with a "voice" that is synced up perfectly with the mouth.

But is this a copyright violation?

A copyright is a form of protection for the creators of original works. H2M, as the original owners of the copyright, have the exclusive right to reproduce the work, display the work publicly, and to authorize others to do the same. H2M alleges that Cartoon Network was not authorized, and just stole the idea without their permission.

To prove a copyright violation, H2M must first prove ownership of a valid copyright, and then that the defendant copied that protected work.

Potential Defenses

However, certain copyrighted works fall under exceptions that don't require permission from the original owners. These two exceptions are works in the public domain, and works that are classified as "fair use."

Work becomes a part of the public domain when the copyright expires, when it's not renewed, or when the owner decides to dedicate the work to the public domain. This exception likely will not apply to Cartoon Network.

On the other hand, fair use is determined by a four-factor test that looks at the purpose of the use, the nature of the copyrighted work, the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the market. Because it is such a legal gray area, the courts will usually look at this on a case-by-case basis.

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