SW Legal studies in Business

Plastic Wishbone Meets Copyright Protection Test

Appeals court held that a plastic wishbone meets the test for copyright of a sculpture because it is an original work, not a duplication of a real wishbone. Since the copyright is valid, the owner had the right to collect damages from an infringer.

Topic Intellectual Property
Key Words

Copyright; Infringement

C A S E   S U M M A R Y

Lucky Break Wishbone designed, copyrighted, and produced wishbones. The wishbones were designed using graphite electrodes to make it smooth and “attractive and sleek.” While it looked like a wishbone, it was thinner in the arms and more rounded on the edges. Sears then produced similar wishbones for sale. Lucky Break sued for copyright infringement. Sears contended that the wishbones did not meet the elements needed to obtain a copyright. The trial court held that the copyright was valid, and the jury awarded Lucky Break $1.7 million in damages. Sears appealed.


Affirmed. The plastic reproduction of a wishbone by Lucky Break was independently created as required for a valid copyright. It was not an exact copy of a natural wishbone. Artistic changes had been made via a computer model to make the wishbone attractive to buyers. That meets the text of originality of a “sculptural work” under the Copyright Act. Since the copyright was valid, Sears could then be liable for infringement by its copying and sale of imitations of the copyrighted wishbone. The jury’s determination of damages was reasonable, as Lucky Break was able to show a revenue stream to Sears of over $5 million related to the wishbones.

Citation Lucky Break Wishbone Corp. v. Sears, Roebuck and Co., 2010 WL 1391358 (9th Cir., 2010)

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