CBS Broadcasting is alleged to have violated copyright by selling a farting hippo puppet featured on more than a dozen episodes of NCIS.
The lawsuit, filed Monday in California federal court, continues a strange year in entertainment on the stuffed-animal front. In February, Disney was taken to court over an evil stuffed bear character in Toy Story 3. In July, Seth MacFarlane's production house was sued for allegedly stealing the talking teddy bear that made Ted such a monster hit. And now, some controversial flatulence from a stuffed hippopotamus.
The plaintiff is Folkmanis Inc., which says it makes "high quality, three-dimensional soft sculptural works, including stuffed animal puppets of original design."
The first version of the stuffed Hippo came in 2002. The following year, the CBS crime drama used it as a prop, but states the complaint, "It was often accompanied by a dubbed sound effect of a fart attributable to the Hippo 1 puppet, and the show puppet was referred to and came to be known as 'Bert the Farting Hippo.'"
Bert the Farting Hippo has passed gas on the show since then.
Folkmanis says it made a second version of its Hippo in 2009, has obtained a copyright registration on a "sculpture/ 3-D artwork," and was then contacted by CBS and co-defendant Delivery Agent, which operates the online CBS Store.
"CBS and DA had surmised that a hippo puppet would be a profitable product to offer for sale on the CBS Store," says the lawsuit. "DA contacted Folkmanis and contracted to have a special edition of the Hippo 2 puppet made exclusively for DA and CBS. The special edition Hippo 2 puppet ('Hippo 2.1' puppet) is identical to the Hippo 2 puppet with the addition of a spiked choke collar and a sound box that emulates the sound of a fart. The copyrightable subject matter of the Hippo 2.1 puppet is identical to the copyrightable subject matter of the Hippo 2 puppet."
Indeed, here's the CBS Store selling various Bert the Farting Hippo products, including the main item that's currently 56 percent off retail for $19.99, key chains, slippers, T-shirts and a phone case. Folkmanis says its application for the keychain design is pending at the Copyright Office.
In 2012, the defendants allegedly began having the items shipped from China. This "unauthorized" manufacturing and distribution allegedly violates the plaintiff's exclusive rights. Folkmanis believes it is entitled to defendants' profits, which it estimates to be about $733,000.
No word yet on whether the farts constitute non-copyrightable matter, a work-for-hire, or just maybe, fair use under the First Amendment, but a CBS spokesperson responds, "“We believe this to be a flatulent abuse of the legal system, and we intend to clear the air on this matter immediately.”
Email: Eriq.Gardner@THR.comTwitter: @eriqgardner