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.