Appeals Court Says Banana Costume Is Infringing
from the insert-your-own-damn-pun dept
It's been a bit of a roller coaster ride for Kangaroo Manufacturing over the past few weeks. The company -- which has admitted that it looks for popular items that are being sold on Amazon, and then develops competing products -- won its lawsuit a few weeks back, in which it was accused of copyright infringement for copying a floating duck pool float. In that case, the court determined that the ducks in question were not similar enough to be infringing. However, in another case, involving banana costumes, Kangaroo was not so lucky. Back in April we wrote about the appeals court hearing in that case, in which the judges joked that they were disappointed none of the lawyers showed up in the costume. However, in the end, the 3rd Circuit appeals court upheld the lower court's injunction that the two banana costumes were too similar and that Kangaroo's violated the copyright of Rasta Imposta (ht to Bill Donahue for spotting this one).
There were two keys to this particular ruling. The first was the Supreme Court's terrible ruling in the Star Athletica case upturning decades of copyright law saying that you can't get a copyright on "useful articles," (which many people believed included clothing). In Star Athletica, the Supreme Court effectively changed that, saying that if there's artwork within the clothing, that could be viewed separately from the clothing, it's a different story. That's why there is suddenly a bunch of these kinds of copyright lawsuits. Here, the judges feel that Star Athletica means that if two banana costumes are too close, well, that's infringement.
The Supreme Court in Star Athletica found the two-dimensional design patterns on cheerleader uniforms eligible for copyright protection. Id. The uniform’s utilitarian “shape, cut, and dimensions” were not copyrightable, but “the two-dimensional work of art fixed in the tangible medium of the uniform fabric” was. Id. at 1013. Imagining those designs apart from the uniform did not necessarily replicate the useful article even though the designs still looked like uniforms. See id. at 1012.
The Star Athletica Court also provided helpful examples addressing three-dimensional articles. First, it reaffirmed its decision in Mazer, which held that a statuette depicting a dancer, intended for use as a lamp base, was eligible for copyright protection. Id. at 1011 (citing 347 U.S. at 214, 218–19). Second, the Court noted that a replica of a useful article (cardboard model car) could be copyrightable, although the underlying article (the car itself) could not. Id. at 1010. Finally, the Court noted that a shovel, “even if displayed in an art gallery,” still has an intrinsic utilitarian function beyond portraying its appearance or conveying information. Id. at 1013 n.2. So it could not be copyrighted, even though a drawing of a shovel or any separately identifiable artistic features could.
Here, the court found that there were distinguishing factors in Rasta Imposta's banana costume that could be covered by copyright law. To do that, as per Star Athletica, it needs to carve out which parts of the "useful article" are separable and can be considered a copyrightable item on their own. And, apparently, that includes parts of the banana... but not other parts.
To begin with, Rasta’s banana costume is a “useful article.” The artistic features of the costume, in combination, prove both separable and capable of independent existence as a copyrightable work: a sculpture. Those sculptural features include the banana’s combination of colors, lines, shape, and length. They do not include the cutout holes for the wearer’s arms, legs, and face; the holes’ dimensions; or the holes’ locations on the costume, because those features are utilitarian.
What about the fact that it's a banana and a banana is found in nature and thus it's ridiculous to give a copyright on the design of a banana. Well, the judge say "not quite":
Kangaroo also contends the banana is unoriginal because its designers based the design on a natural banana. They ask us to hold that depictions of natural objects in their natural condition can never be copyrighted. This argument seeks to raise the originality requirement’s very low bar, which precedent forecloses for good reason.... The essential question is whether the depiction of the natural object has a minimal level of creativity. Rasta’s banana meets those requirements.
Kangaroo also tried a different approach, saying that even if Rasta's banana design met that minimal level of creativity to be eligible for copyright, it was ineligible due to two other copyright doctrines: the merger doctrine and scenes a faire. The merger doctrine is related to the idea/expression doctrine and says that certain types of expression can only be done in one way, and therefore you shouldn't be able to copyright that expression, as it would effectively be banning the idea. Here, Kangaroo argued that was the case with a banana costume. Scenes a faire is a similar doctrine that basically says certain "background" elements in a work are so common that it's ridiculous to think they could be copyrightable, as you'd block out lots of other works.
However, the court tosses both of these out by saying that there are other ways to make a banana costume -- and highlighted that Rasta Imposta submitted a bunch of examples that wouldn't infringe its costume:
Here, copyrighting Rasta’s banana costume would not effectively monopolize the underlying idea because there are many other ways to make a costume resemble a banana. Indeed, Rasta provided over 20 non-infringing examples. As the District Court observed, one can easily distinguish those examples from Rasta’s costume based on the shape, curvature, tips, tips’ color, overall color, length, width, lining, texture, and material.... We agree and hold the merger doctrine does not apply here.
[....]
Here too, copyrighting the banana costume’s non-utilitarian features in combination would not threaten such monopolization. Kangaroo points to no specific feature that necessarily results from the costume’s subject matter (a banana). Although a banana costume is likely to be yellow, it could be any shade of yellow—or green or brown for that matter. Although a banana costume is likely to be curved, it need not be—let alone in any particular manner. And although a banana costume is likely to have ends that resemble a natural banana’s, those tips need not look like Rasta’s black tips (in color, shape, or size). Again, the record includes over 20 examples of banana costumes that Rasta concedes would be non-infringing. The scenes a faire doctrine does not apply here either.
And thus, Kangaroo loses. So, the lesson is, don't copy your banana costume. If you're wondering what this has to do with the progress of science and knowledge, well, I'm afraid I have no answers for you.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright
Companies: kangaroo manufacturing, rasta imposta
Reader Comments
The First Word
“This ruling is totally... nuts!
(What? What did you think I was going to say?)
Subscribe: RSS
View by: Time | Thread
Because of course
Someone wants to make banana costumes, obviously we need the full power of the federal courts to gibe them an exclusive right to make them.
Without Intellectual Monopolies, who would create new clothing? We'd all be nekid!
[ link to this | view in chronology ]
Re: Because of course
"Mommy, why is the Emperor naked?"
[ link to this | view in chronology ]
Re: Because of course
How long till this concept means I can't think what your thinking because you have an Intellectual Monopoly on that thought?
The instant case seems to express that creating a banana costume that looks like a natural banana is copyrightable so anyone else creating a banana costume that looks like a banana would be infringing:
which part of a natural banana doesn't contain combinations of colors, lines, shape and length?
Now, I am pretty sure that not all bananas look alike. They all look similar, but I can, and do, choose a particular banana, to eat now, from the others in the bunch even thought over time I will eat all of those bananas, I can distinguish which one I want now. So, even though bananas have combinations of color, lines, shape, and length they can be differentiated. Which brings us to the question, which banana did each of these two companies copy? Did they both have access to the same banana? Or did they create their costumes from generalizations of what bananas look like, and how can those generalizations be copyrightable?
Given the characteristics of banana similarity it is highly questionable that one company copied the costume of the other company, but copied an actual banana, and that that banana was similar to the banana that the former company copied was a stroke of nature, rather than a conscious decision to expropriate the intellectual property of a competitor..
I think this appeals court confused one of these two banana costumes with a strawberry.
[ link to this | view in chronology ]
Re: Re: Because of course
How long till this concept means I can't think what your thinking because you have an Intellectual Monopoly on that thought?
Tom Scott did a video on this, with a sci-fi scenario of a copyright enforcement algorithm that started pumping out nanobots that erased everyone's memories of all copyrighted works they'd ever seen, as "unauthorised copies".
[ link to this | view in chronology ]
Re: Re: Re: Because of course
That sounds terrifying. I would think that eventually everyone would just be brain dead because of the sheer amount of memory erasure.
[ link to this | view in chronology ]
I feel much calmer with copyright enforcing nanobots...
I would be terrified, but the sheer number of copyrighted terrifying things means that every variation on that thought has been copyrighted, and thus erased.
[ link to this | view in chronology ]
Re: Re: Re: Re: Because of course
Sadly for us those on the legislature and judiciary will be completely unaffected.
[ link to this | view in chronology ]
Re: Re: Re: Re: Because of course
That sounds terrifying. I would think that eventually everyone would just be brain dead because of the sheer amount of memory erasure.
So, everyone becomes the equivalent of politicians under the sway of copyright?
You're right, that is terrifying.
[ link to this | view in chronology ]
This ruling's a proper 'narna!
[ link to this | view in chronology ]
Yes, we copyright bananas
We copyright bananas today...
[ link to this | view in chronology ]
shape, curvature, tips, tips’ color, overall color, length, width, lining, texture, and material
How many of these need to be different, exactly?
Just looking at the images in their ruling, the color, width, and length are different.
I have no idea what the lining or material are (though there are only really a handful of materials used for something like this: cotton, nylon, polyester).
The picture makes it look like the texture is different, though that's hard to tell from images so it may not be true.
Curvature is just a derivative of shape, so we can throw that one out. The shape is clearly different at the top, though largely the same elsewhere. One is much more structured and has some supporting lines in the fabric, though it's unclear whether that would go under shape or texture.
The tips/tip color are the same.
So out of the 9 variations the court allowed for, it copies at most 6 of them and more likely only 3 or 4.
I'd also argue that choice of lining is entirely utilitarian, and (for these costumes at least) material and texture are as well. Certainly material and texture can be artistic choices, but in practice they're nearly always whatever is cheap and/or easy to work with. Neither of these have a similar texture to an actual banana, for example.
[ link to this | view in chronology ]
So then I assume that future cases can hold up this banana case "for reference"?
[ link to this | view in chronology ]
Re:
Since it's the Third Circuit, the ruling should only be binding on Delaware, New Jersey, and Pennsylvania.
However, other courts outside that jurisdiction could certainly follow the Third Circuit's example, if they feel that the decision is sound.
[ link to this | view in chronology ]
Re: Re:
True, but I was going more for the comedic.
[ link to this | view in chronology ]
Re: Re: Re:
Not everyone keeps up with the world of memes :)
[ link to this | view in chronology ]
Re: Re: Re: Re:
Or the sources thereof.
Imgur.com
[ link to this | view in chronology ]
Your honor, if it would please the court...
IT'S PEANUT BUTTER JELLY TIME!
PEANUT BUTTER JELLY TIME!
PEANUT BUTTER JELLY TIME!
PEANUT BUTTER JELLY WITH A BASEBALL BAT
[ link to this | view in chronology ]
Re: Your honor, if it would please the court...
Now that's going to be stuck in my head all day.
[ link to this | view in chronology ]
Wait. "Lining" and "Material"?
So, the lining and material of a costume not utilitarian but artsy instead?
In other news, Appeals Court rules the sky is green. Story developing...
[ link to this | view in chronology ]
This ruling is totally... nuts!
(What? What did you think I was going to say?)
[ link to this | view in chronology ]
Re:
Well, I'm sure glad you didn't say .... "goofy"
[ link to this | view in chronology ]
Re: Re:
That would get a lawsuit from Disney.
[ link to this | view in chronology ]
Re: Re: Re:
Gawrsh.
[ link to this | view in chronology ]
Re:
Mason,
Is this another one of your arrogant "I will post my witty comment and make it first word myself" comments?
[ link to this | view in chronology ]
Re: Re:
Is this another one of your baseless accusations with no facts to back it up?
[ link to this | view in chronology ]
Re: Re: Re:
Considering the number of times where I go into the comments section, and there is only one new comment, by Mason, and that comment is already made first-word, literally within seconds of his comment being posted.
No I would say not baseless at all as I have seen it happen too many times. And if he didn't do it, why doesn't he just say so.
But it is funny to see you get triggered like that, Mason fanboy?
[ link to this | view in chronology ]
Re: Re: Re: Re:
That is not evidence, that is an anecdote. Many people read and subscribe to TD and could have made it the FW.
Do you have evidence proving it was he who did it those times? Or are you just assuming?
Because he's not required to?
I get "triggered" when people make baseless accusations with ZERO facts or evidence to back them up. You could have made that comment on any other poster and I would have responded identically. Sorry to burst your bubble.
If you've got proof he did it I will gladly retract my statement.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Maybe not proof this time, but it is something he has done in the past... see the link posted below as it backs up my statement to a certain extent.
You sure are the sensitive one, and I must have really touched a nerve with you. But it's going to be all right, keep going and you'll feel much better once you let it all out.
I would say, even before the link was posted*, which I was unaware existed, I had more than ZERO facts or evidence, maybe not as much as you would like, but enough to question him about it.
When can I expect your retraction?
* BTW, thanks to the other commenter who posted the link, fully explains what I have been seeing.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Only to a certain extent and you have no proof he did it this time.
I'm just sick and tired of people spouting off whatever nonsense they want and drawing stupid conclusions from ordinary events. (e.g. social media has an anti-conservative bias and is banning them) Having not seen any other evidence to suggest he was doing that (given that's only available to admins) your claim on the face is absolutely baseless.
And this is supposed to be an insult of some kind?
And what facts or evidence would that be? I'm genuinely curious here because absent that comment, there is nothing to suggest he did such a thing.
As soon as you either provide some sort of concrete proof that shows his user account clicked the first word button on his post and made it the first word, or he admits to doing it himself. Anything else is spitting in the wind and is proof of nothing.
I'll note he didn't exactly admit to doing it, only made the argument that it was not wrong for anyone to do so, and some other commenter baselessly accused him first that time as well prior to that linked statement. Given the level of sarcasm on the internet, his response could reasonably have Poe's law applied.
So, if you have some actual proof or a confession (that link is neither, though does lend some credence to your claim) provide it and I will gladly retract. Until then, you're still making baseless accusations.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Mason himself?
[ link to this | view in chronology ]
Re: Re: Re:
Well, he has admitted to doing so, in the past. His claim was something along the line of 'well the checkbox is there, so why not?'.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Got a link for that?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
https://www.techdirt.com/articles/20170215/02473736716/apple-wants-to-stop-you-fixing-your-iphone-ip ad-source-says-it-will-testify-against-right-to-repair-legislation.shtml#c341
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Yeah, there is a checkbox right there. I can make any of these posts First/Last word. Because I'm not an AC.
Your point? And would your point have anything to do with the Imaginary Property under discussion?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
I think his "point" with that link is that the linked to comment is, in his mind, Mason admitting to making his own post First Word. While it could be interpreted that way, it's nowhere near the smoking gun he thinks it is.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
Even if the option is there, it takes a pretty big ego to click that little box. I've long wondered why first and last word were so odd -- often not related to the article and even when they were they're not funny or insightful. I thought they were just favorites of one of the editors but it turns out they're just people tooting their own horns. I guess now we know, and we know whose posts to ignore.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
I have been declared numerous times as first word. None of those times did I do it myself, even though that opportunity presented itself. I always appreciated that recognition, as I do when I get a funny or insightful badge.
But that is the point, first, last word or Insightful or funny badges are recognition from the community, not an opportunity for self aggrandizement. I, personally, would prefer the recognition from the community as apposed to self promotion, which is why I have never used the buttons in the reply box, nor the buttons available on each post for any of my comments. Ever.
I don't always get recognition from the community. That doesn't mean my post was neither insightful nor funny (depending on what I was trying for). It just means that my comment did not meet some quotient that awards the badge. In the end, some of my comments make the weekend analysis. Sometimes those happen because of sheer number of votes. Sometimes because what I had to say caught enough attention to be marked insightful/funny but didn't make the top two, yet were appropriate for mention, none the less.
In any of those cases, I appreciate the recognition I get from the community, and am not particularly upset when that recognition doesn't come. It would be weird if everyone agreed with me all of the time.
Which brings up the question: 'Why don't you?'. -:)
[ link to this | view in chronology ]
Re:
This comment wasn't nearly clever enough to be declared first word. And if the author of said comment self-declared it as first word then said author has an outsized ego.
[ link to this | view in chronology ]
Re: Re:
If being the key word. No one has yet presented evidence that he did.
[ link to this | view in chronology ]
Re: Re: Re:
Eh, I'm pretty sure that if an insider makes a post First Word, which is written by another non-anonymous user, it's mentioned (e.g. Made first word by Ninja).
That said... so fucking what? Mason's a straight, conservative churchgoer, and expresses concern when the police chip a nail from time to time, but he's usually never the batshit dumbfuck at the level of average_joe or Herrick or blue or Hamilton. Or - btr1701, for that matter.
I mean, if it bothers people so much he wants to spend money on a site to advertise himself, those who get their panties in a twist over it could... make an insider account for themselves and get first dibs?
[ link to this | view in chronology ]
Re: Re: Re: Re:
As someone else pointed out, as an insider when making a post the first or last word, they have the option to make who made it anonymous. So the fact that it doesn't show any "Made first word by" is only indicative that whoever did make it checked the box to be kept anonymous that they were the one who did it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Half true, attaching your name to a comment like that is a choice but it works the other way around, such that anonymity as to who did so is the default rather than the opposite and you have to check a box to add your name to a first/last word comment.
[ link to this | view in chronology ]
Re: Re: Re:
No one has yet presented evidence that he didn't either. If somebody else had marked it first word, I assume that they would have come forward and said so. The OP, mason, hasn't yet come forward and denied it either. I realize that you can't prove a negative, but in this case, it would be very easy.
Now I get it in terms of the availability, if you ave the ability to do so, there is nothing preventing you from making a comment first word. But if somebody is consistently making their own comments the first word, it tells me that they are just stroking their own ego.
After looking through old posts and seeing how often Mason has the first word, it would not surprise me in the slightest that he was making his own comments first word. What that tells me is that I should just ignore Mason's comments altogether as he seems to want everybody's attention and is almost as bad as the trolls around this place in terms of attention seeking (and sometimes his rants).
Now if it was him doing it, he could gain a lot of respect back from me (and others too I would guess) if he would just step up and do the adult thing and admit it.
Otherwise, I have lost all respect for his comments and feel like most of them should just get flagged as "abusive/trolling/spam"
[ link to this | view in chronology ]
Re: Re: Re: Re:
I'm sorry but automatically assuming that since someone checked the anonymous box that means the poster is the one who did it is fairly absurd. Say it wasn't Mason, say it was any other insider, would you assume the same thing?
Why would you assume that? They have no reason to. And if they intended to admit to doing it in the first place, why not just leave the box unchecked? It's much easier.
Which means absolutely nothing. He may not even know this discussion is taking place for all we know.
If you can't do something, then it's not easy, because you can't do it. Stop saying nonsense.
And you have no evidence that this is the case. If you do, provide it and prove me wrong.
And yet you have nothing to prove that he did in any of those instances. All you have is hearsay and conjecture.
That doesn't follow at all from your factually baseless assertions. There is no logical connection between the two statements.
This is predicated on him actually having done it, which there is no proof that he has.
You are entitled to jump to conclusions and judge someone based on hearsay, conjecture, illogical reasoning, and potentially some kind of grudge. Just don't expect everyone else to be as irrational as you.
[ link to this | view in chronology ]
"If you're wondering what this has to do with the progress of science and knowledge, well, I'm afraid I have no answers for you."
Let
s wait and see what this banana suit evolves into, we dont want to jump the gun and end up looking like dicks[ link to this | view in chronology ]
Justice, or a scam?
Amertka’s courts are a jobs program for, more often than not, a jobs program for those who would not last fifteen minutes working a “real” job.
[ link to this | view in chronology ]
You'd think the bevy of Techdirt trolls wouldn't be able to defend this incomprehensible decision, but... diving back into the rabbit hole of 2017, one Mister Tero Pulkinnen, aka Meshpage Man, claimed that banana costumes constituted IP infringement because - get a load of this - he thinks babies should have an understanding of copyright law.
I wish I was joking.
[ link to this | view in chronology ]
Re: Respect for copyright should be a primal instinct
All newborns know that "the first scream" has been copyrighted along with any first words they might utter later in life. In order to save themselves and their parents from lurking copyright predators utter silence has evolved as a survival trait.
[ link to this | view in chronology ]
Any curvature in the rasta design is functional. Look at them. Its a straight banana in the most simple easily mass produced style, but the feet come out a hole at the only point of significant curvature...so the bottom of the banana isn't sitting between your legs and making you bow legged. That bottom bit is supposed to be stuffed with material to make it solid...and you don't want that between your legs if you are walking around. This is the minimal curvature necessary to make the costume functional. Other curvature is in the nature of a banana, with tapered tops and bottoms. In fact, all of the elements that seem copied seem to me to be decisions based on ease of mass production. The shape of the top? Instead of building structure into the top they both appear to use a one-step sewing design that relies on stuffing material into the top for structure. Black tips and uniform yellow coloring, positioning of the seams. Everything feeds into this design being the most bare bones, cheapest possible design. I looked up a ton of costumes of this type, and found tons of creative ones. This isn't a creative banana costume.
I am unimpressed wwith the court saying "well, you could possibly do something different, so It clearly copies the creative elements", but then lists off elements that don't appear to be copied. If i hired 100 kids to draw a man in a banana costume, Id get variations on this costume 90 times.
[ link to this | view in chronology ]
Re:
Yeah, I'm hoping they'll "a-peel" this decision.
I'll see myself out.
[ link to this | view in chronology ]
Re: Re:Oops
You slipped.
[ link to this | view in chronology ]
I’m just saying...
No ones going to follow this law.
[ link to this | view in chronology ]
This is about the level of jurisprudence I would have expected from a banana republic.
[ link to this | view in chronology ]