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A Clown Fish Is a Clown Fish Is a Clown Fish

I wrote here about a French comic book author's lawsuit against Disney and Pixar, alleging that Disney plagiarized the characters and storyline for their hit movie Finding Nemo from his comic book about a clown fish named Pierrot (see post on December 21). As reported in an article (Nemo n'est pas un clone de Pierrot [Nemo is not a clone of Pierrot], March 12) by Sophie Lutrand on TF1, a French judge has rendered the first judgment in the case, ruling that there is no suspicious similarity between Nemo and Pierrot (my translation):

On Friday, the advising judge from the Tribunal of Paris rejected the request to block the sale of certain objects bearing the image of Nemo, Disney's most recent hero, finding that there was no similarity with Pierrot, a clown fish drawn by a French author of children's books. For the judge, there was no "serious similarity" and thus "no confusion" possible between the two clown fish, both smiling and striped in orange and black. Nemo, Disney's famous hero, is "more smiling" and "rounder," according to the judge. Pierrot, French comic book hero, is "more elongated." Nevertheless, according to his creator, Franck Le Calvez, "Pierrot the Clown Fish" would suffer from the similarity and has thus sued Disney, the digital animation studio Pixar, and the distributor Hachette for trademark infringement and has requested that certain related products such as books, stuffed animals, pajamas. This decision, rendered as advisory, is not final. A detailed case will be presented on October 5 before another chamber of the Tribunal of Paris.

According to the judge, Louis-Marie Raingeard, "if the stylized shape (of Nemo and Pierrot) is comparable, it is not at all similar." Pierrot "appears longer and more cylindrical"; "the colors are variable . . . Nemo is usually more red and Pierrot more orange"; "one has scales, and the other doesn't"; "while both characters are smiling, Nemo shows teeth and his smile is more human, while Pierrot's, toothless, seems more like the smile seen on certain portrayals of dolphins," the magistrate wrote. He adds that there could be confusion between the two, especially with an audience made up of children and that could be described as "opinionated and attentive." "And, supposing that a similarity could be proven, Disney's copyright predates that of Flaven Scène," the company that holds the Pierrot copyright, the magistrate added in his decision, since "Pierrot the Clown Fish" officially appeared in September 2002, while Nemo's image was protected in February 2002.
I think the judge's ruling, while not binding, indicates the fate of this lawsuit. Both characters are clown fish, or rather they are both clown fish who have been anthropomorphisized. Beyond that, there is really no way to show that one is based on the other, no matter how suspicious the similarity may seem. I will not be surprised if the final judgment on this case is no different.

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