INTRODUCTION

It seems quintessentially American that in the year of the United States bicentennial, one maker of a plastic toy Uncle Sam mechanical bank sued another to invalidate a copyright.1 In determining the validity of the appellant’s copyright, the court compared the plastic bank to a simi- lar cast-iron Uncle Sam bank that had existed in the public domain since the 1880s. The appellant claimed a myriad of differences between his copyrighted bank and that of the original, including a change in the mate- rial the bank was made out of, the shape of the carpetbag Uncle Sam was holding, a shortened figure and narrowed base, a change in the texture of many of the bank’s elements, the addition of leaves instead of arrows in the talons of an eagle on the bank and alterations to Uncle Sam’s face, hairline, hat, dress, shirt collar and bow tie.2 While noting that the long list of changes made the plastic bank more than a “faithful reproduction,” the court found the alterations to be “merely trivial” and invalidated the copyright for lack of originality.3 But if the plastic bank was not a simple reproduction, and not sufficiently original, what was it? What changes, if not to size, substance, texture, art, and shape, could the maker possibly have made that would have distinguished it sufficiently from its source material?
The questions generated by this landmark case highlight how, perhaps more than any other area of law, copyright law is grounded in the subjec- tivities of human perception.