Assembly (Animism)

Thing 002301 (Wing-Nut)

In 1996 Marc Kellman and David Kellman made a foam hat in the shape of a wing nut. According to the Kellmans, who are both devoted fans of the Detroit Red Wings ice hockey team, the hat demonstrated that they were “nuts” about the “wings”. On October 9, 1996, the Kellmans applied for a patent for the hat design. On November 14, 1996, the Kellmans registered with the United States Copyright Office a work entitled Wing Nut Sculpture. In order to register the word phrases and marks Wing Nut and Wing-Nut, the Kellmans also applied for a trademark with the United States Commissioner of Patents and Trademarks.

The Red Wings allowed IBM Corporation and the advertising firm Ogilvy & Mather to publish a print advertisement in various newspapers featuring a person wearing Kellman’s hat. On May 9, 2000, this led to the execution of a Settlement Agreement between the Kellmans, the Red Wings and others. The agreement provided that the Red Wings agreed to withdraw and dismiss its opposition proceedings in the United States Patent and Trademark Office regarding the Wing Nut Trademark. The Kellmans, in turn, agreed to assign the Wing Nut Trademark to the Red Wings, thereby entitling the latter to use the word phrases and marks “Wing Nut” and “Wing-Nut”. In addition, the agreement gave the Red Wings the right to sell the hat and related merchandise bearing the “Wing Nut” trademark while giving the Kellmans a percentage of any sales. The Red Wings marketed and sold for commercial purposes at Joe Louis Arena and the Red Wings’ Hockeytown retail stores two versions of a t-shirt bearing a reproduction of Kellmans’ hat. In late 2002 and early 2003, Coca-Cola Company sold Coca-Cola soda pop, upon which the words “Be a Wing-Nut!”, appeared on the label and the word and design of “Wing-Nuts” hat on the cap.

Kellman alleged that Coca-Cola and the Red Wings made these reproductions without their consent or permission. On August 12, 2003, the court case Kellman v. Coca-Cola and Red Wings took place at the United States District Court of Michigan. Judge O’Meara held that:

The Red Wings assert that they had a license to sell “wing nut merchandise” under the Kellmans’ copyright and design patents. [...] [W]hile the Red Wings have a license to use the [trademark] “wing nut”, it does not have a license to use [Kellman]’s Copyright and Patent. [...] To establish a claim of copyright infringement, the claimant must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. [...] [Coca Cola and Red Wings] want this Court to view the Wing Nut Sculpture as a merely a three dimensional foam depiction of a hardware screw device - in essence, something not original. [The Kellmans] counter, however, that the Wing Nut Sculpture acts as a visual pun on the name of the hardware device. As explained by [The Kellmans], the “Wing” refers to the Detroit Red Wings. The “Nut” refers to a person who is fanatical in his or her devotion to something. Hence, as emphasized by [Kellman], “Wing Nuts” are literally fanatic supporters of the Detroit Red Wings and the Wing Nut Sculpture was designed as a novelty foam sculpture hat that expresses that idea in a very clever and original fashion. At this stage of the litigation, we agree with [Kellman]. The [Coca Cola and Red Wings] argument that the Wing Nut Sculpture is merely a 3D depiction of a common hardware device is too narrow. [T]he original elements that remain are the artistic expression of the idea of fanatical support for the Detroit Red Wings in the form of a novelty foam hat shaped like a wing nut, as well as the size, shape and proportions of the Wing Nut Sculpture.

The court concluded that the hat was original and was protected as a work of art and that the t-shirt and the soft drink bottlecap illustrations were substantially similar to the copyrighted hat.