Sculptor James Croak is the copyright holder of Pegasus, Some Loves Hurt More Than Others, a mixed-media, life-sized depiction of a winged, taxidermied horse breaking through the roof of a low rider (a customized car with a lower body). The sculpture was first exhibited in 1983 and allegedly became world-famous in the years that followed. In 2014, defendant Saatchi & Saatchi, an international advertising agency, created an ad campaign which depicted a family driving through a suburban area in a Toyota RAV4 with a large, pink stuffed winged unicorn strapped to the roof. Toyota Motor Sales also displayed the Toyota RAV4 with the winged unicorn on its roof at the 2015 Chicago Auto Show.

Croak sued Saatchi & Saatchi and Toyota Motor Sales (together, the “Toyota defendants”) for copyright infringement, alleging that the ad campaign copied his sculpture. On a motion to dismiss, the district court applied the ordinary observer test and held in favor of the Toyota defendants. Under this test, an ordinary observer would overlook disparities between the works unless she set out to detect them and would regard the aesthetic appeal of the works as the same. In this case, the district court observed that the works differed in many key respects. For example, Croak’s Pegasus was “realistic and life-like,” while the Toyota defendants’ winged unicorn was clearly a child’s stuffed toy; Croak’s car was a “cool,” vintage low rider, while the Toyota defendants’ car was a “family-friendly SUV;” and Croak’s work was staged dramatically with “smoke billowing in the background,” while the Toyota defendants’ work occupied a “sunny suburban setting.”

The district court next evaluated the total concept and feel of the works. It found that the Toyota defendants’ “light-hearted and playful” advertisements evoked feelings of family-friendly fun. In contrast, the district court found that Croak’s sculpture evoked “power, independence, and escape.” Although the district court acknowledged that the sculpture could reasonably be interpreted in different ways, it determined that no reasonable juror would find the sculpture to be a lighthearted conjuring of family-friendly fun. Accordingly, the district court granted the Toyota defendants’ motion to dismiss.

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