Mooning over Halloween

In 1982, a man named Norbert Pasillas designed a latex Halloween mask that looked like the "man in the moon" (or, at least, that was similar to how many artists have depicted the "man in the moon"). Pasillas' mask was a three-dimensional white crescent moon worn over a person's head, with a face on its concave surface (that is, on the "inside curve" part of the "moon"). Eye holes on Pasillas' mask matched up with the wearer's eyes. The face was that of an elderly man with wrinkles on his brow and around his eyes, a bulbous nose, a rounded chin, and a closed mouth with thick, slightly pursed lips. Pasillas registered a copyright for his mask in July 1987.

And then, in one of those remarkable coincidences, in 1986 the advertising agency of Davis, Johnson, Mogul and Colombatto created an advertising campaign for McDonald's restaurants featuring a character known as "Mac Tonight." He, too, wore a mask depicting the man in the moon. Like the Pasillas mask, the McDonald's mask was a three-dimensional white crescent moon worn over the head, and it likewise had a face on its concave surface of the "moon."

Unlike Pasillas' mask, the McDonald's mask had ears on the sides, and Mac Tonight's youthful, unwrinkled face included a pair of sunglasses, a triangular nose, no chin, thin lips, and a broadly grinning, open mouth revealing the upper teeth, which could be manipulated to make the mouth look like it was moving. And like "the King," the mascot of McDonald's rival, Burger King (who appeared a few years later in commercials with his, um, mask-like, unmoving face), "Mac Tonight" straddled the line between the cute and the creepy.

The wearer of the McDonald's mask would see through the mask's mouth. The character was used in a series of "Mac Tonight" television ads, the first of which went on the air in southern California in December, 1986. Mac was depicted sitting at a piano and sang a McDonald's jingle that, in a riff on the name of the character, used the music from Kurt Weill's "Mack the Knife," replacing that phrase with, of course, "Mac Tonight."

The success of the ads in southern California led McDonald's to commission a national ad campaign for Mac Tonight. The television ads, which first aired nationally in March 1987, were apparently a smashing success as an advertising campaign. Well, at least the ads gave Ronald McDonald, the Hamburglar, Mayor McCheese and the rest of McDonald's signature advertising gang a rest.

There was at least some superficial similarity between McDonald's "Mac Tonight" mask and the Halloween mask that Pasillas had designed earlier -- a three-dimensional Man in the Moon character that had the mask's face on the concave surface. So, in July 1988, Pasillas sued McDonald's in the Los Angeles federal district court alleging that it had infringed on his copyrighted mask. In April, 1989, the court granted McDonald's motion to dismiss the case on the ground that no reasonable juror could find the two masks substantially similar.

Undaunted (and apparently, with a lot of money to spend to protect one Halloween mask), Pasillas took the case to the federal appeals court. The first question that the court had to look at, curiously, was whether masks can be copyrighted at all; ironically, McDonald's didn't challenge that notion, so the court accepted that they could be (for this one case) and didn't resolve the case on that ground.

The court then turned to the copyright issue, and concluded that the important legal principles were established by another case that had involved a dispute between manufacturers of stuffed toy dinosaurs, including "their postures, body designs, and cuddly softness." These are the earthshaking questions that we pay federal judges hundreds of thousands of dollars a year to resolve.

So, based on what might hereafter be called the "cuddly softness" test, the court agreed that the four basic elements of Pasillas' mask (crescent-moon shape, depiction of a human face, white or off-white color, and design enabling the mask to be worn over the head) were not so distinctive as to make "Mac Tonight" an infringement on Pasillas' design. The court also noted that Mac Tonight's "stylish, youthful, carefree persona" was completely different from Pasillas' "careworn, fatherly character."

But at least Pasillas had created a character who was a perfect fit -- if one pardons the expression -- for Halloween.

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