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.

Filed Under: copyright
Companies: kangaroo manufacturing, rasta imposta

Today In Bananas Copyright Law: Court Urged To Rule That A Banana Costume Is Not Infringing

from the scenes-a-faire? dept

In the fall of 2017, we wrote about a, well, bananas copyright lawsuit filed by costume maker "Rasta Impsta" against K-Mart, alleging that it was selling an infringing banana costume.

That case quickly settled (so, it's likely K-Mart just paid off Rasta Imposta to go away), but around the same time the company had sued a few other companies over similar costumes, including one operation called Kanagroo Manufacturing, for making a similar banana costume. As we had noted at the time of the Kmart case, historically, there's been no recognized copyright in costumes, since articles of clothing are considered uncopyrightable. Except, in a truly awful Supreme Court ruling in 2017, the court swung open the door to clothing/costume copyrights, by arguing that certain elements in a piece of clothing could be considered copyrightable as "design" rather than as a "useful article" (which is not subject to copyright).

And, thus, last year a District Court judge issued an injunction against Kangaroo Manufacturing, arguing that its banana costume likely infringed on the banana costume of Rasta Imposta. The court, not surprisingly, cites that awful Star Athletica Supreme Court ruling to argue that elements of the banana costume are separable and thus can be covered by copyright. Rasta argued that the following elements were separable and could be covered by copyright:

Rasta Imposta claims the following as the unique features of the banana design: the overall shape and cutout holes of the costume, the black ends of the banana, and the vertical lines running down the middle of the banana.

Really. The lower court ruled that the cutout holes are not subject to copyright, as they are utilitarian, but decides otherwise on the shape, lines, and black ends of the banana. Oh, and also the placement of the cutout holes, rather than the holes themselves. Which is... bananas. The following is from a real, actual court ruling:

The Court can easily identify the features of the Banana Costume having a pictorial, graphic, or sculptural quality.

These features include: a) the overall length of the costume, b) the overall shape of the design in terms of curvature, c) the length of the shape both above and below the torso of the wearer, d) the shape, size, and jet black color of both ends, e) the location of the head and arm cutouts which dictate how the costume drapes on and protrudes from a wearer (as opposed to the mere existence of the cutout holes), f) the soft, smooth, almost shiny look and feel of the chosen synthetic fabric, g) the parallel lines which mimic the ridges on a banana in three-dimensional form, and h) the bright shade of a golden yellow and uniform color that appears distinct from the more muted and inconsistent tones of a natural banana.

The court does then basically argue that Kangaroo's Banana is way too similar to Rasta Imposta's banana and that there could be other ways to design a banana costume:

Rasta Imposta provides this Court with twenty-one banana costumes available in the marketplace that are easily distinguished from Rasta Imposta’s design, which suggests that the limited number of options requirement necessary for merger to apply is absent. (Arena Decl. Ex. A). The Court has reviewed this submission and notes several unique ways of designing a banana costume.9 The shape and curvature can vary, as can the existence and color of tips to the banana. Bananas can also be designed to appear ripe, overripe, or unripe, ranging in color from yellow, to brown, to green. The shape can be long or more stout, relatively elongated or thin or more plump. The banana may be whole or partially peeled. There can also be the production of vertical lines and the texture and material can differ.

While the court admits that Rasta has a "relatively weak copyright" in its banana costume, it is a valid copyright, and thus Kanagaroo should be barred from continuing to sell its own version.

Anyway, Kangaroo appealed the case, and the 3rd Circuit recently held a hearing where the judges were able to crack some jokes.

“I thought the counsel would wear the costumes,” U.S. Circuit Judge Michael Chagares laughed.

According to Courthouse News, the debate centered around what parts of a banana are copyrightable:

But Schrader argued Wednesday that there is nothing original about Rasta’s banana costume, such as brown spots or perhaps sunglasses, that would make it protectable; it is simply a ripe, yellow banana.

“So a costume of a terribly underripe or an overripe banana is copyrightable?” U.S. Circuit Judge Thomas Hardiman said. “But one of a normal off-the-shelf banana is not copyrightable?”

Schrader says not exactly, but pressed that there are only so many ways a banana can look.

“It was designed to look like a banana in nature,” Schrader said. “There is no artistic twist.”

Rasta's lawyer retorted (and, again, this really happened): "There are so many ways to conceive a design of a banana. And they conceived it exactly as ours."

Anyway, it's not clear how this case will actually turn out. Thanks to the Star Athletica decision, the Supreme Court has opened up this kind of nonsense as actually worth litigating. I'd still be hard pressed to think that the framers of the Constitution intended copyright law to be used to fight over two similar looking banana costumes, however.

Filed Under: bananas, copyright, costumes, halloween, useful articles
Companies: kangaroo manufacturing, rasta imposta

How The Supreme Court's Continued Misunderstanding Of Copyright Ruined Halloween

from the costume-copyrights dept

Earlier this year we wrote about a truly awful Supreme Court ruling concerning whether or not the design of cheerleader costumes could be covered by copyright. As we had explained earlier, this ruling could have a major impact on a variety of industries. The key issue is that "useful articles" are not supposed to be subject to copyright. Historically, that's always meant that the actual design of clothing or costumes is not protected by copyright law. And that's been a really good thing. It's inspired much more competition and innovation over the years in the clothing world.

As we noted when the ruling came out, allowing the copyright on cheerleader uniforms to stand, with a weird "new test" (basically whether you can "separate" the design from the useful article, and if the separated design is copyright-eligible), would lead to a lot of lawsuits pushing the boundaries of that test. And that's exactly what's happening. And it may ruin Halloween this year. Because suddenly, Halloween costume designers are starting to sue. Specifically, a costume maker named (no joke) "Rasta Imposta" is suing K-mart for having the audacity to sell someone else's banana costume. Really. This is straight out of the complaint:

Incredibly, Rasta Imposta argues that basic features of a banana are its "distinct visual elements."

The appearance and trade dress of Rasta Imposta’s distinctive Banana Design is identified by a combination of arbitrary and distinct visual elements which make up its overall appearance, design, and trade dress, including, but not limited to the Banana Design’s bright yellow color with dark tips at the ends, the lines running down the sides, the Banana Design’s placement of the banana ends, and the cutout holes in the Banana Design.

I don't see how Rasta Imposta can legitimately argue that its copyright covers the yellow color of a banana, the dark tips or lines running down the side. That's kinda common to all bananas. But, still, it insists another banana is infringing.

The Kmart Totally Ghoul Costume has the same shape as the Banana Design, the ends of the banana are placed similarly, the vertical lines running down the middle of the banana are placed similarly, the one-piece costume is worn on the body the same way as the Banana Design, and the cut out holes are similar to the Banana Design.

And, no, I have no idea why Kmart has named its Banana costume "Totally Ghoul."

This whole thing seems particularly pointless. It's a freaking costume of a banana. But, alas, with the Supreme Court flinging open the door to pulling out elements of costumes and making them copyrightable, expect more of these lawsuits.

Filed Under: banana, copyright, costumes, halloween, scotus
Companies: kmart, rasta imposta