Judge Richard Posner's Ruling In Wacky 'Banana Lady' Case Highlights Just How Wrong Judge Kozinski Was About Copyright

from the two-famous-judges,-two-very-different-rulings dept

If you’re talking about the short list of the most well-known appellate judges in the federal court system today, Judges Alex Kozinski and Richard Posner are likely on that list, potentially near the top. We’ve discussed both plenty of times in the past, sometimes agreeing strongly with rulings from both — and sometimes finding their rulings maddeningly troublesome. However, lately we’ve been especially troubled by Kozinski’s ruling in the Cindy Lee Garcia case, in which he appeared to make up his own rules about what copyright law says, and how an actress in someone else’s film can magically claim a copyright over her performance.

A new ruling by Posner in a case that is… well… positively bananas, provides a nice quick lesson in just how wrong Kozinski was. The case of Catherine Conrad, the “Banana Lady” involves Conrad suing a bunch of credit unions over a variety of wacky theories after she performed at some event they held. All of the basic theories got tossed out by a state court, but since copyright is a federal issue, it went through the federal courts, ending up in front of Posner and two other judges in the 7th Circuit. The issue is that Conrad claims a copyright on a bunch of things she likely has no copyright claim over, but in part, told the credit unions that people in attendance could take photographs and videos, but only for “personal use.” Conrad, additionally, insists that posting such images and videos to Facebook is not personal use, and therefore her copyrights have been violated. There are a whole bunch of problems with this argument, as you might imagine, but let’s focus on one part of Posner’s decision that Kozinski might want to take note of:

The performance itself was not copyrighted or even copyrightable, not being “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a); see, e.g., Kelley v. Chicago Park District, 635 F.3d 290, 303–04 (7th Cir. 2011); Baltimore Orioles, Inc. v. Major League Baseball Players Assʹn, 805 F.2d 663, 675 (7th Cir. 1986); United States v. Moghadam, 175 F.3d 1269, 1280–81 (11th Cir. 1999); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.03[B], p. 2‐32 (Aug. 2004). To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written “dance notation” of it. See Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n. 3 Wikipedia, (2d Cir. 1986); “Dance Notation,” http://en.wikipedia.org/wiki/Dance_notation. She did neither.

What’s somewhat incredible is that the David Nimmer that Posner relies on above to highlight that a performance itself is not copyrightable is one of the few “copyright experts” to claim that Kozinski’s bizarre interpretation makes sense. Of course, while Nimmer is still one of the most respected copyright scholars around, his analysis of copyright law has been increasingly odd over the past few years.

Meanwhile, Posner notes all the other problems with Conrad’s wacky claim, including the idea that she could have a valid copyright on a banana costume:

Conrad has copyrights, which we’ll assume are valid, on photographs and sculptures of her in her banana costume. She has also registered a copyright on the costume itself, but there is doubt (not necessary for us to resolve) about the validity of that copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product. See, e.g., “Adult Banana Costumes,” Google, www.google.com/#q=adult+banana+costumes&tbm=shop

I just love the thought of Richard Posner doing that Google search. There’s also a somewhat hilarious explanation of what a “singing telegram” is. However, he accepts the possibility that she might have a valid copyright and explores whether or not photos and videos taken by audience members could possibly infringe. He finds that suggestion pretty much preposterous (again, Kozinski should read this):

Photos or videos made by members of the audience could conceivably have been either reproductions of, or works derivative from—that is, creative variants of, Gracen v. No. 13‐2899 5 Bradford Exchange, 698 F.2d 300, 304–05 (7th Cir. 1983)—copyrighted elements of Conrad’s performance, such as the costume (if it is copyrightable). And she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted. 17 U.S.C. ?? 106(1), (2). It’s unlikely that the photos and videos were derivative works; to be such a work, a photograph, or any other copy, must have an element of originality, Schrock v. Learning Curve Intʹl, Inc., 586 F.3d 513, 519 (7th Cir. 2009); Ets‐Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076–77 (9th Cir. 2000)—some modicum of creativity added to the copyright‐ed work. Cf. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991); Bleistein v. Donaldson Litho‐graphing Co., 188 U.S. 239, 249–50 (1903) (Holmes, J.); Jewelers’ Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 934 (S.D.N.Y. 1921) (L. Hand, J.). “To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.” L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc). But whether the photos or videos were mere depictions, or sufficiently departed from the originals to be derivative works, they would violate Conrad’s copyrights if the copyrights covered material that members of the audience duplicated in their photos and videos.

She had, it is true, authorized the arrangers of the trade association event to permit the members of the audience to take photos, or make videos, for their personal use. But that was a limited license. We don’t know how limited; but maybe it didn’t authorize posting photos or videos on the internet, or at least on some of the internet sites on which they were posted; and in that event such posting may have violated the provision of the Copyright Act that forbids unauthorized video or tape recording of a musical performance, 17 U.S.C. § 1101(a), or the provision that forbids the unauthorized public display of copyrighted musical or choreographic works. § 106(5). The arrangers might therefore be charged with having induced violation of those provisions. Cf. Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). But Conrad does not invoke either provision, and probably couldn’t because one of the arrangers advised the audience of the prohibition at the end of the performance—and Conrad doesn’t contend that any photos or videos of it were posted on the internet before the performance ended.

So her suit has no merit.

Separately, Posner notes that it seems clear that Conrad seems to spend an inordinate amount of time filing frivolous lawsuits, including one in which she even sued someone for not posting a video of her performance — somewhat the opposite of the present case.

But we cannot end this opinion without remarking her abuse of the legal process by incessant filing of frivolous lawsuits. This is at least the eighth case she’s filed in federal court since 2009, and she has filed at least nine cases in state court just since 2011…. She appears not to have won any judgments, but she did obtain settlements in the first three federal suits that she filed.

She once sued event organizers who mailed persons attending the event a postcard that had a picture of her in her banana costume. On another occasion she sued persons who videotaped her performance but declined to post the video on their website after she demanded a $40,000 license fee; her theory was that the recording infringed her copyright even though she had consented to it and that the individual defendants’ decision not to post the video (and thus avoid paying the license fee) constituted tortious interference with her business. The defendants obtained summary judgment in that suit after enduring 15 months of litigation.

She has filed suits in state and federal court against her former lawyers, and once sued her web hosting company for taking down her web site after she failed to pay the bill. The web host had paid $4000 to compensate her for “lost business” while the web site was down—even though it was down because of her failure to pay. She pocketed the $4000 but sued the web host—and in both state and federal court—anyway.

Her previous state‐court complaint against persons who are defendants in the present case accused one of them of being “armed and dangerous,” compared him to the Unabomber, and suggested that “someone from Homeland Security or Fort Know” (she must have meant Fort Knox) should take his “threats seriously.” She didn’t specify what those threats were, or whether she meant that he had made threats or that he posed a threat. She demanded that another defendant both admit having been “physically present at the Kennedy Compound located in Boston, MA” (presumably she meant Hyannis Port, not Boston) on the day before or the day of the trade association event involved in this case and produce all her travel documents for those days.

The defendants in one of Conrad’s federal suits were awarded more than $55,000 in costs and fees, pursuant to 17 U.S.C. § 505, which authorizes the award of costs, including a reasonable attorney’s fee, to the prevailing party in a copyright suit. She has been sanctioned at least $23,000 in her state court suits on the authority of Wis. Stat. §§ 802.05(3), 895.044, and possibly $73,000 more in one of the suits, though we can’t be sure just why her company was ordered to pay that amount to the defendants in that suit.

Posner closes by questioning why the federal district court has not yet barred her from filing further suits until she has paid her previous litigation debts.

To be clear, this case is nuttier than the Garcia case in many ways, but the underlying principle concerning copyright is basically the same: whether or not a “performer” has any copyright claim. Posner dismisses such a preposterous idea quickly, whereas Kozinski upended decades of otherwise settled law.

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Comments on “Judge Richard Posner's Ruling In Wacky 'Banana Lady' Case Highlights Just How Wrong Judge Kozinski Was About Copyright”

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Mason Wheeler (profile) says:

What’s somewhat incredible is that the David Nimmer that Posner relies on above to highlight that a performance itself is not copyrightable is one of the few “copyright experts” to claim that Kozinski’s bizarre interpretation makes sense.

For some reason, I found this sentence difficult to parse and I had to read it several times before I got it. I would have phrased it like so:

What’s somewhat incredible is that David Nimmer, who Posner relies on above to highlight that a performance itself is not copyrightable, is one of…

Anonymous Coward says:

Re: Re: tangible medium of expression

The law does not support that conclusion, although there is some case law discussing what the relationship/direction has to be between the fixer and the entity claiming to be the author.

But even if Judge Posner thought that should be the law, that should have been explained in the opinion, rather than saying there was no fixation. There obviously was fixation.

That One Guy (profile) says:

Re: Re: Re: tangible medium of expression

So, say I took a photo of a crowded area, say a public beach, who then, according to your view of copyright law, owns the copyright on the picture? The one who took the picture(me in this case), or the people in the picture?

As far as I’m aware, the only way for the subject to own the copyright over a picture or video would be for the person being photographed/filmed to have made a deal with the photographer/cameraman beforehand, hiring them and explicitly laying out the transfer of copyright, otherwise the copyright goes to the one ‘fixing’ the picture/video by making it, not the person in it.

Anonymous Coward says:

Re: Re: Re:2 tangible medium of expression

“So, say I took a photo of a crowded area, say a public beach, who then, according to your view of copyright law, owns the copyright on the picture? The one who took the picture(me in this case), or the people in the picture?”

In most cases, you would.

Where the person in the picture is directing the person taking the picture on how to frame the photo, making decisions on costume, posing, lighting, etc, then there is a very strong basis for the person in the picture to be considered the author and copyright owner, even without an explicit agreement/assignment.

Where they are both contributing such creative expression to the resulting work, I think there is a pretty good argument that they are joint authors, but I’m not aware of much case law specifically dealing with that scenario.

Lurker Keith says:

Re: Re: Re:5 tangible medium of expression

Not so fast bucko. If I were to walk by Ford at the Con, he probably chose where he’s standing. He definitely chose, at least for these purposes, his outfit. I likely let him chose the pose. All I would’ve done is taken the pic (angle is usually dependent on either the pose or where the camera person happens to be standing when asking for Con pics). The copyright would still be mine.

You’re arguing a point that is subjective, definitely not clear, & changes from case to case.

If I take a pic of someone on a stage, the same things I mentioned above would be present. The person on stage didn’t have a say in WHEN the pic was taken, so many aspects are still in my control (like what pose the artist is in, since the poses change as the song progresses; what’s in the background, if ANYONE on stage is moving around the stage; & possibly lighting, if the lighting changes based on the song).

Someone making decisions on what’s in the pic don’t necessarily translate to them holding the Copyrights. I actually think a contract or special understanding is necessary.

What if Ford forgot his camera & wanted me to take a pic of him to send to Carrie Fisher? In a case like that, it might be a toss up on who owns the Copyrights, because noone is thinking about those rights, we’re thinking about sending a pic to Leia. In the absence of the rights not being transferred or considered, I’m pretty sure they DEFAULT to the photographer, though.

It’s another story if Ford masterminded the whole thing, in every detail (in the above example, I at least still have control over angle & what all may be in the background — often, Con photos have other Con-goers randomly in the background, & I could wait until it was less chaotic, or a Storm Trooper or Wookie was in the shot). In a case like that, it’s probably a Work-for-Hire, which Copyright used to clearly spell out who gets the rights in that case (an idiot Judge had a different idea of late).

Anonymous Coward says:

Re: Re: Re:6 tangible medium of expression

“You’re arguing a point that is subjective, definitely not clear, & changes from case to case.”

Yes. I thought I made that pretty clear. Are you just clarifying it, or is that a criticism? As much as many people would like there to be simple, bright-line rules that are easy to apply, the law usually depends on the facts of each case. That is certainly the case when determining whether someone contributes sufficient original expression to a work to be protectable by copyright.

I’m not sure what you’re basing your conclusions on, but it seems to be more of a “gut feeling” than the law. Unfortunately, many aspects of copyright law do not follow what might be considered reasonable assumptions.

Lurker Keith says:

Re: Re: Re:7 tangible medium of expression

Ignoring the examples doesn’t help your case. I used these for specific reasons.

The first one, Han, was the original scenario I mentioned, which you agreed with. It puts all the control of content of the pic in Ford’s hands. All I would’ve done was ask for & take the pic. (This is how most pics of cosplayers &/ or celebrities at Cons in the hallways function.) This pic I would clearly hold any Copyright interest in. Ford would have none (at least in the US), unless I expressly gave him some.

The 2nd just puts the first example in the context of the case being discussed (musician on stage). It was added for completeness & relevancy. There is no indication that the Banana Lady had any agreement w/ the people in the crowd, except that they were ALLOWED to take pics (& only that they could take pics; it seems nothing else was discussed). This permission should waive any Copyright concerns regarding what she’s wearing, the poses she’s in, the fact it usually isn’t allowed to take pics at concerts, etc. (also, I’m not sure if you can waive only some portions of Copyright w/o waiving them all). Because commercial use & public showings weren’t expressly forbidden, the artist wouldn’t be able to retroactively add those restrictions to the implied contract (see final paragraph for more on this last point).

The 3rd presents a scenario a court might need to decide, but, as I said, I’m pretty sure the Law defaults to the photographer in the absence of an agreement on who owns the rights. This one is iffy because the photographer isn’t necessarily the one who wanted the pic taken, but the camera used did belong to the photographer; the issue is would this be a work-for-hire situation or something else (the something else could be equally muddy).

The 4th is your exception to my Han scenario, which I agree w/ you on, that if Harrison Ford specifically COMMISSIONED the pic, he’d own the Copyrights. Few would argue w/ that (I would say EVERYONE, but this article & the Muslim “movie” fiasco has shown a few who would disagree).

The main difference in these scenarios is who wants the picture. In ALL the examples, at least certain parts of Copyright were implicitly waived because there is permission to take the pic. In all of my examples, there is no agreement (agreements require both parties to agree, hence the term), muchless discussion, that commercial use or public exhibition (like posting online) was prohibited (from this article, it would seem the same is true in the case being discussed as well).

To be complete, it is unlikely Harrison Ford would’ve sued me had I taken his pic in either the 1st or 3rd examples & either sold it &/ or posted it online (unless the pic for Leia was embarrassing, in which case there would’ve definitely been some kind of discussion regarding use).

Anonymous Coward says:

Re: Re: Re:8 tangible medium of expression

And simply stating legal conclusions without any support doesn’t help your case.

You are presenting difficult factual questions that don’t have a lot of case law addressing them, and simply stating a conclusion without giving any legal reason that would support your conclusion.

For example, you stated that one scenario is “probably a Work-for-Hire” without giving any indication that the person taking the photo is an employee or there is a written,signed work made for hire agreement. One of those two things is necessary for something to be considered a work made for hire under the law. See 17 U.S.C. 101.

I don’t see much point to addressing specific hypotheticals that are necessarily delving into legal gray areas when you are not recognizing clear and well-settled legal rules.

Lurker Keith says:

Re: Re: Re:9 tangible medium of expression

There’s no point debating established facts/ laws. The point is the grey area.

My example of taking a pic of Harrison Ford at a Convention happens ALL THE TIME. If he lets me take a pic of him, w/ no discussion of any terms, the pic is mine (heck, in the hall, I wouldn’t need permission, though he could complain, but most likely wouldn’t, but there wouldn’t be anything he could do). That isn’t argued in the US (Banana Lady & that Muslim “movie” are exceptions). Let me switch this to a different form, which might make my point clear: paparazzi. If a pic that wasn’t commissioned by someone else isn’t the paparazzi’s, shows like TMZ would be illegal. Other countries may give the celebrity rights in the pic, but not the US. I had assumed I wouldn’t need to spell out common sense. Taking pics of people in public isn’t a crime & does not automatically grant the subject any rights in the pic. This is established law. It’s also common sense.

The 2nd example just takes the facts of the Han pic & translates them into an equivalent scenario for the case being discussed. As my further breakdown explained, permission to take pics appears to have been granted, so many of the pitfalls of Copyright are no longer applicable.

Also, the first 2 examples could possibly fall under Fair Use, but that shouldn’t even come up, since, again, most, if not all, of the Copyright issues were waived by giving permission to take pics.

The 3rd is a real grey area (me taking a pic of Han, at Harrison’s request, to text to Carrie). It happened on the fly w/ no discussion of terms. I suggest Work-for-Hire COULD be argued (solely to present the possibility/ both sides), but it isn’t clear (since the photographer didn’t get anything, other than keeping the pic, &, again, there were no terms).

& the 4th example is a Commission, which would involve a contact.

Had you tried to understand my examples, you would’ve seen all this. Your failure to do so exposes you as a Troll.

Pragmatic says:

Re: Re: Re:3 tangible medium of expression

There is no evidence that Catherine Conrad directed the person taking the picture on how to frame the photo, posing, or lighting, etc. Unless she made that costume herself, she can’t even claim for making decisions on costume except for the decision to put it on.

Even then, how do you copyright a banana costume? There are no copyrights on fashion.

That’s some leap of logic, AC. Bear in mind that it’s usually the photographer/filmer making the framing, posing, and lighting calls, etc., not the subject.

Anonymous Coward says:

Re: Re: Re:4 tangible medium of expression

I’m not sure if you read the article or the opinion, but she holds a copyright registration on the costume. “There are no copyrights on fashion” is not entirely correct.

With regard to her performance, I think a photo may fail to capture enough of the copyrightable aspects (say, the choreography or any literary aspects), but a video probably would.

That would raise the difficult question of who owns that copyright interests in that video.

Vikarti Anatra (profile) says:

Re: Re: Re:2 tangible medium of expression

So, say I took a photo of a crowded area, say a public beach, who then, according to your view of copyright law, owns the copyright on the picture? The one who took the picture(me in this case), or the people in the picture?
you are.
but if you don’t have model releases from them (or other exception applies) you can’t actually use picture

anon says:


More and more people need to be doing what this woman is doing, maybe if the courts are bogged down with these frivolous cases they will start thinking about having a very close look at how crazy copyright law is.

Simple solution.

If a business uses any content to make money or for advertising, or in any aspect of their business they must pay a reasonable license for that.

No individual can be charged for any copyright infringement if they do not purposefully use it for monetary gain and even then the content creators can only seek a 1% license fee from them.

Imagine how amazing it would be if we could all share everything from movies to books to video on our favorite websites like Reddit and 9gag and Facebook and google+ then discuss the content with friends and family. Amazing, it would be i say.

Mike Masnick (profile) says:

Re: Re:

I am struck by the alacrity with which Prof. Nimmer’s opinion is swatted away here as a misguided trifle.

Prof. Nimmer has increasingly been making odd claims about copyright law that seem much closer to a certain party’s best interests than what the law and Congress has actually said. This has been going on for some time, but is most obviously noted in situations like the following:


Over the last few years, I find that nearly every time Prof. Nimmer’s opinion is brought up, it’s him reinterpreting copyright law in strange, and sometimes dangerous, ways. I think he’s doing a great disservice to the reputation of his father.

Anonymous Coward says:

Well, let’s see. If a photographer takes a picture, he owns the copyright to it, filed or not. If said photographer takes a video of an event, he owns the copyright. One presumes that some arrangement is made between the photographer and the studio in question such that the studio ends up with the copyright, by assignment. Nowhere in there is any consideration for individual subjects/actors. They all have signed releases or are under contract with the studio, not the photographer. Any direct claims by subjects or actors has already been covered by the studio. No standing, period.

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