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
Comments on “How The Supreme Court's Continued Misunderstanding Of Copyright Ruined Halloween”
Imposta v. Imposter
Kmart also should expect a lawsuit from Michael Jackson’s estate, what with the one glove and all. And PETA/Naruto (relationship status: it’s complicated) because all your bananas are belong to us.
on the other hand...
The Orville is a better Star Trek than actual Star Trek (Discovery). So there’s that.
Re: on the other hand...
That’s not saying much – The Orville is a 5 minute skit CRAMMED into an hour time slot.
(Does a Google image search on “banana costume”)
(Sees a great many OTHER similar banana costumes from others sources)
(Wanders off mumbling angrily)
Re: Re:
(Rasta Imposta: Does a Google image search on “costume”)
(Rasta Imposta: Sees a great many OTHER costumes from others sources)
(Rasta Imposta: Starts slinging lawsuits, because all costumes are distinctly designed with fabric and/or other materials and thus must be infringing their distinct visual elements.)
Wait, Kmart still exists? I thought they went extinct years ago.
Re: K-Mart?
If you’re in Canada, yes, they went extinct years ago. Actually, it’s worse than that. The stores were either closed or sold to Zellers, another extinct dinosaur. Zellers closed to make way for Target Canada. Again, extinct. There are many vacant former Target Canada locations and often all the landlords can do with the spots is split them into smaller stores.
In another country? Your mileage may vary.
Re: Re: K-Mart?
“Target Canada” seems like a suggestion not very well thought out.
Who's misunderstanding?
I don’t mean to imply that the ruling involved is correct, or a good thing. But in regards to the function of the court, it is they who dictate our understanding of what a law means, not what we want them to understand it means.
When adverse consequences get bad enough, the push is to get the law rewritten. But that’s not the court’s fault.
Re: Who's misunderstanding?
I would say that incorrect or bad rulings are entirely the court’s fault.
Re: Re: Who's misunderstanding?
What would you say is the distinction between a poor ruling and a poorly written law?
Re: Re: Re: Who's misunderstanding?
Don’t change the subject. Your first comment is hilarious:
We want them to dictate our understanding but we don’t want them to understand it in the first place? As I wrote above, that’s hilarious.
And the AC is right. Bad rulings are entirely the court’s fault. But to go ahead and chase your squirrel anyway, bad laws are the legislature’s fault. But they’re not mutually exclusive. A court can issue a bad ruling on a bad law.
Re: Who's misunderstanding?
Mmmm – Yummy Pretzel logic
Re: Who's misunderstanding?
That argument does not hold up.
Its like saying my 1st amendment rights says I can lie about everyone without legal risk…. so long as a court says it is okay. Well… that is just NOT what the 1st says.
We should expect courts to perform due diligence on the law, not to pontificate from the bench! SCOTUS is a failed court, it barely even pretends to respect the law.
There is not a single amendment not under direct assault by the government in America and there is not a single amendment defended by the court(s).
Re: Re: Who's misunderstanding?
In that scenario, I would say that the root of the problem is that the law preventing you from lying about anyone without legal risk, is a toothless piece of legislative crap.
Actually, legislative crap is is rather the norm these days. It’s no wonder people want to shift blame to the court.
Re: Re: Re: Who's misunderstanding?
You act as though there were not three equal branches of government that are supposed to balance each other out.
Sure, power struggles by sociopaths in our government tilt the scales back and forth but they have not broken it … yet.
Your root cause determination skills need honing.
Re: Re: Who's misunderstanding?
IKR? That second amendment was the first to be reinterpreted in its entirety, going against the previous ~200 years of court interpretation and clear language.
Re: Who's misunderstanding?
Re: Re: Who's misunderstanding?
That border issue is an abuse by the executive branch that the court has chosen not to correct [yet]. To lay all blame on the court alone is disingenuous. Again, the court is not at the root of the problem.
Re: Re: Re: Who's misunderstanding?
The root of the problem is corruption
Re: Re: Re: Who's misunderstanding?
You just said that the court has not (yet) chosen to correct the problem, so assuming you’re correct that they do have the ability to do so then they absolutely do deserve a big chunk of the blame. Personally I expect shitty laws from politicians, and I expect the courts to put them right when they can.
Re: Who's misunderstanding?
If they get to dictate our understanding and can’t be wrong what difference would rewriting the law make? Changing the law doesn’t mean they need to change their interpretation.
Re: Who's misunderstanding?
The court interprets the law, yes.
If they interpret the law incorrectly, that is by clearly a bad ruling. OTOH, by definition, the interpretation by SCOTUS is the correct interpretation of the law until the law is modified, replaced or removed. There is no recourse in the court system if SCOTUS gets it “wrong” unless you somehow persuade them to reverse themselves or the laws are changed in the meantime. The first option typically takes decades.
Cool..
I have a green shirt I like to wear with blue jeans. I can’t wait to sue the next person I see wearing a green shirt with blue jeans.
Re: Cool..
You won’t have standing. You didn’t make/design the pants or shirt.
Re: Re: Cool..
Artists don’t have to make the paint or canvas for copyright to apply, they just have to put them together.
Re: Cool..
If I copyright the wearing of ones underwear inside out, can I demand that everyone drop their pants for inspection?
Certainly there are some pirates out there stealing my wearing of under wear inside out. One might even refer to them as butt pirates.
A bunch of possible outcomes, but...
Who knows what may happen upon a peel?
Re: A bunch of possible outcomes, but...
Take your free ‘lol’ votes and split.
Re: A bunch of possible outcomes, but...
Ghoul story bro.
Oh, no, not the "Totally Ghoul" costume!
First, what puzzles you: it’s a pun on “totally cool”, so feeble that takes a trained expert like me to spot it.
In your prior, you were actually RIGHT: “At a first glance this certainly seems to make sense. It has a fairly common sense feel to it — and the majority argues that the plain text of the law supports this interpretation.”
Until you revert to imagination: “But there are some pretty serious potential dangers here.” — That no one is able to just blatantly copy a banana costume?
As to the specific cheerleading designs shown, well, those colors and patterns didn’t arrange themselves, now did they? When sheerly COPY you are just lazy and deserve to be found liable.
But bet is this banana won’t be found infringing. Any reasonable jury will look at it and decide OBVIOUSLY the author here is Nature (or possibly Nature’s God).
Re: Oh, no, not the "Totally Ghoul" costume!
Useful Arts you say?
Yeah, don’t want anyone to copy a banana costume.
Re: Oh, no, not the "Totally Ghoul" costume!
Re: the pun, it’s only a pun if the new word means something in the context. A ghoul is a thing, and that thing is definitely not a banana.
Pun fail.
Re: Oh, no, not the "Totally Ghoul" costume!
First, what puzzles you: it’s a pun on "totally cool", so feeble that takes a trained expert like me to spot it.
Um. I get that part. Everyone gets that part. What I don’t get is why you’d call a banana costume that.
Re: Re: Oh, no, not the "Totally Ghoul" costume!
It’s the name for the line of costumes.
Their website shows a totally ghoul ninja, a totally ghoul devil, totally ghoul zombie, totally ghoul princess and so forth
Re: Re: Re: Oh, no, not the "Totally Ghoul" costume!
So ‘Totally Ghoul’ isn’t the name of the costume, so much as their line of costumes, which just happens to include the banana one. That makes a lot more sense.
There’s an interesting tax law at play regarding costumes (http://www.npr.org/sections/money/2015/12/18/460315751/episode-670-the-santa-suit). Basically, for tax purposes, there is a distinction between clothing and costumes (also, a similar distinction for dolls vs. toys http://www.radiolab.org/story/177199-mutant-rights/), and that may be at the heart of the battle. It could be argued that costumes are not clothing, and are thus not utilitarian goods.
Granted, that’s a stupid argument, but it’ll probably be the one at the heart of the suit.
Re: Re:
“For tax purposes” is key.
Oh dear, I own a Banana costume like the above from Party City. I hope I don’t get impounded as evidence.
This shit is bananas.
G-H-O-U-L.
Good, let them all go nuclear and go into a lawsuit madness. Let there be barren wastelands. Maybe this will trigger some change in the legislative.
Re: Re:
Nah, because when the battle is over, there will just be one company very pleased with its government enforced monopoly on everything.
Re: Re: Re:
yup – Taco Bell
So then...
…what about QBasic Gorillas? That had yellow bananas in it… displayed on screen … so does that count as “prior art” and the gorillas can sue them?
Re: So then...
Holy smokes, I totally forgot about that. Used to Ctrl+C out of the super secure student menu on our high school computers and play that all the time. Because apparently a lame, dated game was fun if I was playing it in the school library?
I know this has nothing to do with the OP. But your mention of QBasic Gorillas just made my day.
Re: Re: So then...
“Ctrl+C out of the super secure student menu on our high school computers”
Funny story – there was a dude who wrote a college paper on that subject and was sued by some little stupid company … because .. get this .. he described the use of a Microsoft advertised feature.
Prior art!
http://superredundant.com/?comic=189-interview-process
Literally! “Prior art…” See what I did there? Hah hah!
I’m glad my plantain costume is safe to wear.
Banana
Looks like they just cloned someone elses design. This level of similarity cannot happen otherwise. Even if bananas always look the same, their use in costumes is original expression. Then the only matter to consider is whether the design was cloned. If your inspiration was ordinary fruit, the designs would look completely different from each other. While the yellow colour and distinct markings of banana fruit are not copyrightable, getting every detail look exactly the same indicates that inspiration was not ordinary fruit, but something shared by both designs. This means there’s high chance of finding copyright infringement from this system. From this information we cannot say who did the infringement, but timelines of the development activity and the history of the products can indicate who was the original author.
Quite often in these cases, where clear infringement is present, need to be careful about forged history of the products. It’s too easy to invent history for the product, since original author cannot change his history and remain truthful, but people doing infringement knows the development history will be used against him if his history shows a date later than the original, so there’s high chance of forged history appearing in these cases. So relying on historical information is not reliable way to find the original author of the design. So there needs to be other ways to find the author.
Once original author of the design is determined, the case is closed.
Re: Bananas indeed
Speaking of bananas, that is some impressive ‘logic’ to argue that of two banana costumes one of them simply must have copied the other, because it’s not like bananas have a certain look to them or anything such that any banana costume is going to look like… a banana.
If your inspiration was ordinary fruit, the designs would look completely different from each other.
Morbid curiosity compels me to ask just what exactly you think a ‘non-infringing’ banana costume would potentially look like, while still clearly being a banana costume.
Re: Re: Bananas indeed
But – but, they used the exact same color !!!!111111
Re: Re: Bananas indeed
Re: Re: Re: Bananas indeed
The designs have a lot to do with the mechanics of cloth and humans, as it is difficult to get a mush taller conical hat. Also, how low it hangs is limited by the practicalities of walking
Re: Re: Re: Bananas indeed
Where exactly should the arm and legs holes be? Coming out of the back?
Re: Re: Re:2 Bananas indeed
To be non-infringing, the arms would have to come out the leg holes and the legs come out the arm holes. In addition, the head would come out the …. oh, they’ve already done that.
Re: Re: Re: Bananas indeed
It’s just much easier to believe that Disney didn’t ask for the original rights to the public domain content they used for their animated movies. Yet, you would rather give them the benefit of the doubt and furiously bend over backwards to argue against anyone who disagrees with you.
But of course a banana is indisputably copyrightable all of a sudden. You copyright fanboys are a bunch of twisted nutters, I’ll give you that.
Re: Re: Re:2 Bananas indeed
Re: Re: Re:3 Bananas indeed
Re: Re: Re:4 Bananas indeed
Re: Re: Re:5 Bananas indeed
It’s a BANANA with holes for arms and legs. The banana is a “fact” as it’s a real item. There’s NO original design to it at all – it’s merely copying a physical item that exists in nature.
Re: Re: Re:6 Bananas indeed
It’s not nice to copyright nature
Re: Re: Re:5 Bananas indeed
The only original design here is your absurd defense of a banana costume.
Re: Re: Re:3 Bananas indeed
Anyone who clones this design, will save the work amount – it suddenly becomes very cheap to do it.
Right, because the second banana costume was suddenly alleviated of its cost of manufacturing. The "cloning" argument might have barely passed the laugh test if this was about file duplication. Are you saying the second banana costume cost nothing to produce and magically spawned its raw materials and construction process out of the void?
By the by, the RIAA doesn’t press the record button. The studios do; the RIAA is simply the legal PR department that sues grandmothers. For such a staunch "the law is the law is the law" copyright advocate you don’t seem to grasp much of it, but what else did we expect from someone who loathes the idea of fair use?
Re: Re: Re:4 Bananas indeed
Re: Re: Re:5 Bananas indeed
It has already been pointed out to you that the Supreme Court has explicitly rejected "sweat of the brow" arguments for copyright. Copyright is officially not about the effort to create. It is only for new creative expression. And it does not apply to "useful articles" such as costumes.
Re: Re: Re:6 Bananas indeed
Re: Re: Re:7 Bananas indeed
Funnily enough the courts don’t use what you think the law should be when applying it. Just as well, because fair use would simply cease to exist if that happened.
Re: Re: Re:8 Bananas indeed
Re: Re: Re:9 Bananas indeed
Fair use is a hyperbolic example, because you think that making a banana costume requires such an immense amount of effort that the courts have to protect its application despite tons of other similar banana costumes already existing as Andrew D. Todd has pointed out. The only reason why this case is happening at all is because the plaintiffs chose to be litigious assholes.
Otherwise, what’s your excuse for why the plaintiffs in this case shouldn’t be likewise sued by anyone else who’s ever made a commercially available banana costume?
Re: Re: Re:7 Bananas indeed
…food has literally nothing to do with copyright.
Re: Re: Re:7 Bananas indeed
In US law, in order for copyright to apply to a work, the work, among other requirements must be a work of authorship and must have required a modicum of creativity. If you like, you could consider this as being a requirement of some artistic effort, but you’re reading too much into it. Once the threshold is cleared, and it is very very low indeed, it’s utterly irrelevant how much more effort was required.
A simple ‘roses are red’ poem (which have become popular as memes lately) would be sufficient and thus be just as protected as a world-class work of art that took a lifetime and titanic effort to create. The additional effort expended as to the latter is of no legal importance.
Likewise, with regard to your comment below about ‘attaching to someone else’s popularity,’ that is not a form of co-right infringement here. In fact I’ve never even heard of anyone advancing the notion. Copyright infringement of the general sort you’re thinking of (as opposed to unauthorized distribution, say) requires actual copying, whether proven directly or shown to have been the most likely explanation for similarities between two works.
Letting someone else blaze the trail for you, however, has never been prohibited. If it were, there probably would not be so many similar works floating around, e.g. the infamous Die Hard on a _______ movies that could not easily be avoided in the 90s.
Re: Re: Re:8 Bananas indeed
Re: Re: Re:8 Bananas indeed
Re: Re: Re:9 Bananas indeed
“If you consider low bar for effort, then you have no valid reasoning why authors would be able to demand the rest of the world to follow the copyright’s rules.”
Who said that the demands of authors were valid in the first place?
Copyright is utilitarian in nature; it isn’t meant to exist to protect authors, its meant to enrich the public at large. Any benefits it may happen to confer to authors are just a means to an end and subject to change.
I certainly don’t have a problem with tiered levels of copyright (though that doesn’t really exist now, mind you) but it’s not a good idea to base it directly on effort expended. Better to base it on what amount, if any, of artificial incentive is needed to cause the work to be created and published, and whether it’s worthwhile to provide that incentive.
As for your comment on attaching to popularity, it’s not all that accurate. Consider, for example, the popular Christmas movie “It’s a Wonderful Life.” It was never very popular until, after it entered the public domain (because the copyright was not renewed; a good indicator of how unpopular it was) television stations started airing it because it was free. Capra himself didn’t take credit for the popularity of the thing. But then the copyright holder in the story it was based on popped up and shut it all down; the movie is not aired nearly so much now as a result. It was the pirates who made it popular and the copyright holder who attached onto their work.
In any event, the law is unconcerned with that idea. Copying etc are illegal regardless of popularity, regardless of profit motive, regardless of effort expended by either author or pirate (and it’s entirely possible for an infringer to expend more effort than the author; see the Buchwald v. Paramount suit for a well-known example, albeit founded in contract rather than copyright); the law is instead focused on whether specific acts occur and that’s it.
Re: Re: Re:7 Bananas indeed
This is not true. Both "effort" and "creative expression" are required for copyright.
You can say this as many times as you want and it doesn’t make it true. The effort is not required for copyright in the US (other countries are different). There is literally no effort required. Just creativity.
My position is that both are required.
Your position is not the law of the US. It is directly contradicted by the law of the US.
In fact, effort can be used as one "test" to check whether your activity is in dangerous area relative to copyright.
This is not one of the tests under US law. You are making this up.
I don’t want to be mean, but you appear to have zero knowledge of actual copyright law and, instead, are making shit up about how you think the law should work, that are directly contradicted by the actual law. Please stop.
Re: Re: Re:8 Bananas indeed
Re: Re: Re:9 Bananas indeed
Funnily enough, focusing on what the law is saying is exactly why we’re getting all the nonsense we are right now, with babies getting sued for dancing to music and so on. And now when it looks inconvenient for your idiocy, suddenly you think that the law doesn’t matter and you’re allowed to pull whatever you want out of your ass?
Re: Re: Re:10 Bananas indeed
Re: Re: Re:11 Bananas indeed
“There is a better way. The platforms could actually try to check that end users don’t need to choose between illegal way of doing things and legal way of doing things.”
There’s a better way … the fascist way!
Re: Re: Re:11 Bananas indeed
And this supposed solution of yours has already been proven impossible. Viacom sued YouTube over videos posted to YouTube… that Viacom posted themselves. If even the plaintiffs can’t be bothered to check if what they upload is legal or permissible or not how the hell is anyone else supposed to know?
For fuck’s sake, when your solution is expecting infants who can barely walk to know copyright law before posting videos of themselves, which they didn’t take, on the Internet, you know you have some pretty fucked up ways of thinking…
Re: Re: Re:9 Bananas indeed
If you’re interested in new and different copyright laws, you’re in the right place; copyright reform is a popular subject around here. But your posts in this thread aren’t framed as reforms (such as, “the law should say x”) but are instead clearly statements, generally inaccurate statements, of what the law is (saying that certain acts are infringing, that copyright has certain requirements, rather than that it should or that you want it to).
It’s also pretty weird to see your notes about Wikipedia and free software, as surely people ought to be able to volunteer their services and willingly forgo copyrights. I suspect you are big into moral rights.
Re: Re: Re:10 Bananas indeed
Re: Re: Re:11 Bananas indeed
The Copyright rules are not the problem, but rather a lack of a central database of all copyrighted works, and all licenses to use those works that have been issued. Without that at a minimum, there is no way of recognizing whether a work is infringing or not, unless you are the owner of the copyright. And that is before considerations of fair use are brought into the equation.
Re: Re: Re:12 Bananas indeed
Re: Re: Re:13 Bananas indeed
Many your tests are based on the false assumption that people only create new works so as to earn money. Also you are overlooking that these days the equipment needed to produce sophisticated works is now cheap. Many creators create because they are driven to express themselves, and to share what they have created.
Also patronage has made a comeback, so people are being given money to create new works which they give away.
The suggestion of working from author to permissions requires a central database so that not only can authors can be traced, but also who currently owns the copyright, which may have been transferred to a publisher, or passed on as an inheritance. The idea that such a database cannot cope in a world with Twitter and Facebook is either a total failure to understand technology, or a desire to to keep copyright ownership obscured so that mistakes in DMCA and similar requests are harder to detect.
Re: Re: Re:14 Bananas indeed
Re: Re: Re:15 Bananas indeed
Completely false, as some people create content for the same reason that some people climb mountains, it’s what they do, and their job is what funds the activity that they are passionate about..
Also, all the software tools needed for creative work are available for free in the Free and open source world, and that is not the product of slave labor, but rather people being passionate about what they can do with software, and quite a few are supported via various forms of patronage, or hired to work on a piece of open source software because a company uses it and want extra features.
About the only people who are threatened by the self published content on the Internet are the legacy publishers, and the threat to them is that more and more creative people are realizing that they do not need their services, and that the sales for individual titles, are likely to fall to a level, where they generate enough income for a self publisher, but nowhere near enough to keep a fat bureaucracy in employment.
Re: Re: Re:13 Bananas indeed
This’ll be my last reply to you, as you’re clearly nuts, but it is often very difficult to determine if a work, or a use of a work is infringing, and none of your ideas for how to do it have any merit or any foundation in copyright law. Further, please note that we do have centralized patent offices with central registries of patented inventions, and have in the past had centralized copyright offices with central registries of copyrighted works. It’s a fairly trivial thing to do, involves little effort on the part of rights holders, but is essential for any decent system of copyrights or patents.
Anyway, you seem to have a very different writing style from the usual idiot who posts garbage here, so I will assume you’re not that person. In that case, please let me be the first to invite you to either stop wasting everyone’s time until you’ve learned something and can be a productive conversationalist or to get lost. Thanks so much.
Re: Re: Re:6 Bananas indeed
Imagine a case in which all the documents were in Bulgarian, and the judge would not admit that he needed a translator. In that case, one might expect misadventures similar to those which happen when American jurists venture on artistic subjects. English is a compulsory subject in an American high school. Art, Music, and Dance are not. Such instruction as there is, practically ceases at about the third grade. The result is that people like lawyers have no background to interpret art, music, or dance.
These copyright cases seem to involve things which, considered as works of art, are very trivial. Cases involve ring-tones, not the extent to which one symphony may be derivative of another. A work of literature, or a work of art, demands something from the reader or the viewer, or listener, as the case may be. Things which are highly marketable tend to be “cheap thrills,” which don’t demand much of anything from the consumer.
Last night, I walked down to the corner store, and there was a young man picking out a Halloween costume for his two-year-old son. He settled on a Darth Vader costume, which I presume was properly licensed, and all. But here is the problem: The Darth Vader head starts with a 1940 Wehrmacht standard-issue coal-scuttle helmet, combined with a fairly generic gas mask, both painted black. George Lucas wanted to make two fairly concrete points about Darth Vader/Anakin Skywalker, that he was Regular Army, and that he couldn’t breathe the air which everyone else breathed, and he pulled down two standard cliches for the purpose. Of course there was the conventional displacement from the American army to the German army. I don’t think any sensible person would call Star Wars a serious movie– it begs too many political, economic, and technological questions. As a serious work, it would not be considered in the same league as Apocalypse Now, or even the little-known TV-movie Weekend War.
To clarify, “tp” is in Tampere, whcih is in Finland, and we are speaking of Ameican copyright law. The rejection of “sweat of the brow” is not of course the only restriction on copyright. There have been some cases involving fictional works about factual incidents, and court decisions have held that copyright could only apply to those aspects of the fictional works which departed from the facts, and this would presumably also apply to previous public-domain works. Consulting a dictionary of English slang, dated 1981, I find that “banana” has a well-established sexual meaning, and this dictates positioning the banana so that part of it forms a “codpiece.” When you pull out the elements of the banana costume which can be shown to be either ancient or widespread, there is essentially nothing left. A one-liner joke only works because everyone already know it. There is the story about the two stage comedians who used the same joke-book, and could amuse each-other by reciting page numbers.
Incidentally, I went through a list of what I consider good movies, trying to see if any of them had “merchandise.” About the only one which did was Anne of Green Gables. This has becone a cult book/film for Japanese girls, who have the kind of stressful relations with their mothers which American girls have not had for a hundred years. So a Japanese girl buys hersef a wig of red hair with pigtails.
Re: Re: Re:7 Bananas indeed
Re: Re: Re:8 Bananas indeed
Re: Re: Re:8 Bananas indeed
“attaching to someone elses popularity”.
Are you suggesting that copyright include nebulous things such as popularity?
Do you ever wonder why some folk reject such demands and do not purchase and do not want to pirate … they simply are not interested in whatever the product is. I know this is difficult for some to fathom, but it does occur and accusing said people of piracy simply because they have not purchased said item ….. is insane.
Re: Re: Re:9 Bananas indeed
Re: Re: Re:10 Bananas indeed
Copyright law does not include popularity. That’s why every so often you get someone nobody’s ever heard of demanding money because they’re not rich enough… because obviously their work must have been pirated, otherwise they’d be swimming in money. Funnily enough, the common rebuttal trolls provide for indie authors that benefit from piracy is that nobody would ever download their stuff because everyone likes Hollywood…
Re: Re: Re:10 Bananas indeed
“Well, this is because there’s flood of pirated stuff coming everywhere in the market and end users are struggling to find …”
No – There are some people who are not “struggling to find” movies/music, as they are not interested – in any of it. Not sure why this concept is so foreign.
Re: Re: Re: The Claim of Copyright Originality is Usually a Sign of Ignorance Of What Has Gone Before.
I located a George Cruikshank cartoon, from the early nineteenth century, which shows various articles of food, and various dishes, with attached arms and legs, walking towards the mouth of an eater (Dick Sutphen, The Early Illustrators, 1976, p. 118). George Cruikshank had the basic idea two hundred years ago. I grant that there is not a banana (), but there is a dish of oranges, burlesqued into the silhouette of a girl in a ballerina costume. The mere concept of turning a fruit into a costume is and old idea, and it is immediately obvious to do it to a banana.
() I don’t thing bananas were available in Europe at that date, this being before steamships. Walter Scott refers to pineapples as a luxury good in Guy Mannering.
Similarly, you may recall the scene in Harper Lee’s To Kill a Mockingbird, in which the heroine gets into difficulties because she is wearing a food costume which does not allow her to see out. The banana costume is in fact a fairly commonplace idea.
When you add “mechanical considerations,” such as how is the wearer of the costume to sit down, that dictates whatever positioning is still open to negotiation after achieving a likeness of a banana. Here is an instance from the ballerina Margot Fonteyn’s autobiography. When she was called upon to dance the part of the cat in Peter and the Wolf, the costumers gave her a cat-mask to wear, However, inside the mask, she felt spatially disoriented, and unsure which direction was which, a truly pitiable condition for a dancer. She had to negotiate with the costumers about cutting the mask down to the absolute minimum which the audience would agree to recognize as a cat, and not a duck. Even stage clothing has considerable utilitarian considerations.
We aren’t sure of the exact date copyright failed, but records we have uncovered show there was debate over a banana costume that finally shattered the peace.
The copyright wars raged for decades, but in the end everyone could draw their own cartoon mouse without fear.
Re: Re:
I’d have pegged it as the day the Sonny Bono act was passed.
Ok, think there’s an image from one of my favourite TV shows that pretty much sums up all of this.
https://pbs.twimg.com/media/B1NFurCCcAA-xLQ.jpg
I hope K-Mart peels out and gives them the slip
Geez. Even halloween is ruined by the copyright cartel. It’s time to abolish copyright.
How The Supreme Court's Continued Misunderstanding Of Copyright Ruined Halloween
The copyrightability of Halloween costumes is not new, and in fact was upheld over a decade ago by the Second Circuit in Chosun International Inc. v. Chrisha Creations Ltd., 13 F.3d 324 (2d Cir. 2005), which concerned plush animal Halloween bodysuit costumes, where that court also adopted the test for conceptual separability. That test goes all the way back to a 1954 Supreme Court decision, Mazer v. Stein, 347 U.S. 201, involving a utilitarian lamp with a base designed like a dancer. Designs affixed to garments are distinct from the garment designs themselves (shape and cut), which are not protected. The Supreme Court’s recent Star Athletica decision was not really a radical decision and it still leaves the question of originality of imprinted apparel designs to be assessed in each case.