The Saga of Bert the Farting Hippo
(CN) - The creator of Bert the Farting Hippo claims in court that a Chinese company and CBS had the cojones to violate copyright by creating "slavish copies" of its exquisite farting quadruped.
Folkmanis Inc. sued Delivery Agent Inc., S.F. Global Sourcing LLC, CBS Broadcasting, and Shanghai Oriland Toys Co. on Monday, in San Francisco Federal Court.
Folkmanis claims that it is "a creator, manufacturer and distributor of high quality, three-dimensional soft sculptural works, including stuffed animal puppets of original design. Over the past four decades, Folkmanis artists have designed and crafted over a thousand different plush, museum quality stuffed animal puppets crafted from the finest materials."
Its puppet characters have been featured on TV shows, "including programs published by defendant CBS," Folkmanis claims in the complaint.
The company claims: "A Folkmanis puppet sets the standard of excellence against which all others are measured."
(That is probably not the case, some puppet-fanciers say. The Steiff Co., founded in Germany in 1880, is probably the standard-setter in classy puppets.)
At any rate, Folkmanis claims that CBS used its farting hippo puppet in 2003 in "more than a dozen episodes of its nationally distributed television show 'NCIS.'"
Chillingly, the complaint continues: "When Hippo 1 appeared on the CBS NCIS show, 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 appeared in more than a dozen episodes of the CBS NCIS show between 2003 and the present."
Folkmanis, whose hippo puppet was born in 2002, retired the Hippopotamus amphibius puppet in 2006, but reincarnated it in 2009 as a copyrighted puppet identical in every respect, but 10 percent smaller.
"By 2010, about six months after Folkmanis introduced the Hippo 2 puppet into its line, defendants CBS and DA [Delivery Agent] had surmised that a hippo puppet would be a profitable product to offer for sale on the CBS Store," the complaint states.
"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. DA and CBS sold Hippo 2.1 puppets, inter alia, on the CBS Store under the name 'Bert the Farting Hippo'. Below is a typical add for 'Bert the Farting Hippo' appearing on the on-line CBS Store."
The lawsuit then pastes in a screen shot from the CBS Store, featuring a supine gray hippo (farting? Only time will tell) for sale at $19.99, reduced from $44.95.
Folkmanis claims it supplied defendant DA with 30,000 farting hippos, version 2.1, from 2010 until "sometime in 2012."
"In 2011, with profitable sales of Bert the Farting Hippo occurring, DA requested that Folkmanis design a small soft sculpture hippo that looked like the Hippo 2.1 puppet but was smaller, not a puppet and connected to a key ring to form a keychain to be sold by DA and CBS on the CBS Store" the complaint states. "In response, Folkmanis created an original, three-dimensional soft sculptural work emulating a hippo, similar to the Hippo 2.1 puppet (including a sound box and collar) to be used as part of a keychain ('Hippo KC')."
Folkmanis applied for a copyright on the keychain on July 18, before filing this lawsuit. That application is pending.
But to Folkmanis' chagrin and alarm: "In 2012, an employee of DA, without authorization from Folkmanis, contracted with defendant SFGS to procure hippo puppets and hippo keychains from China for DA and CBS to sell on the CBS Store and elsewhere. Thereafter, DA did not place any further orders from Folkmanis for hippo puppets or hippo keychains.
"In 2012, SFGS, acting for DA -- which was acting for itself, for the CBS Store, and for defendant CBS -- contracted with defendant SOTC in China to have hippo puppets and hippo keychains made and shipped to California, in at least some instances directly to DA. The hippo puppets and hippo keychains made and distributed by SOTC to SFGS, sold and distributed by SFGS to DA, and sold and distributed by DA and CBS to customers, are slavish copies of Folkmanis' copyrighted Hippo 2 puppet and Folkmanis' copyrighted Hippo KC keychains."
Folkmanis demands damages for copyright infringement, destruction of the infringing hippos, an accounting, a jury trial and costs of suit.
It is represented by H. Michael Brucker, of Emeryville.
The hippopotamus is the third-largest land animal in the world, after the elephant and the rhinoceros. Its closest genetic relative is the whales, which are believed to have snuck back into the ocean tens of millions of years ago, after checking things out on land.
An adult male hippo can weigh 3,300 lbs., though its female paramour seldom tips the scale at more than 2,900. It fights with crocodiles, with varying results, and is considered one of the most dangerous animals of Africa.
To mark their territory, male hippos yawn, while defecating over a large area, and spinning their tails.