Comic Case Studies

Walker v. Viacom Int’l, Inc., 2008 WL 2050964 (N.D. Cal. 2008), aff’d, 362 Fed. Appx. 858 (9th Cir. 2010)

Facts: In an epic battle between cartoon sponges, who wins? Neither, of course—we’re talking sponges here!—but in this copyright infringement suit, it was Nickelodeon that really wiped the floor with disgruntled cartoonist and novelty sponge entrepreneur, Troy Walker. In 1991, Walker drew a single, four-panel comic strip featuring “Mr. Bob Spongee, The Unemployed Sponge,” a kitchen sponge with arms, legs, and round googly eyes¹. The strip was then glued to the back of actual kitchen sponges (with prefabricated googly eyes, of course) and sold far and wide (if by “far and wide” you mean a Bay Area flea market, a local classified ad, and “the side of the road”)².

In 2003 after “SpongeBob SquarePants” (“SBSP”) first aired, Walker registered his comic strip, and sued the creator of SBSP for copyright infringement. To prevail, Walker had to demonstrate not only his valid copyright but also “copying of constituent elements of the work that are original.”³ To establish the “copying” prong of the test, Walker needed evidence of direct copying (there wasn’t any) or, in the alternative, some “reasonable opportunity” to see or copy Walker’s Sponge (often called “access”).⁴ But there’s more—Walker would still have to show “substantial similarity” between the original elements of the two sponges.⁵ Walker didn’t have much luck on the “access” front, which left him with only one route to victory: show that the sponges were “so strikingly similar that only copying can account for the similarity.” ⁶

What did the court say? The trial court decided that Mr. Bob Spongee was neither “especially distinctive” nor was he depicted consistently, so he couldn’t be protected as a “stand-alone character” outside of the comic strip where he appeared.⁷ In a straight-faced comparison of “anthropomorphized sponges,” buck teeth, pickle-shaped noses, and houses made of fruit, the court concluded that “the similarities between the two characters are limited to the stock elements used to humanize a sponge.”⁸ On top of everything, the defendants had undisputed evidence that SBSP was created independently and may even have been conceived two years before Bob Spongee’s grand debut on the world stage. On appeal, the district court’s opinion was affirmed on the grounds that the comic strip and TV show were not substantially similar.⁹

Why is this case important? Does this case mean that there are no original ideas left, or that sea sponges are the new zeitgeist? Not quite. People are creating original works every day, often independently of each other, and sometimes they share common elements, but unless you can show actual copying or access, and “substantial similarity” (as decided by a court of law), all you have is an unlucky coincidence—not copyright infringement.