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


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  • icon
    Bamboo Harvester (profile), 26 Apr 2019 @ 12:15pm

    Just add...

    ...some red to the overall color and claim it's a Plantain instead of a Banana...

    /s

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Apr 2019 @ 12:49pm

      don't hug me i'm scared

      They could do the same with some green tinting, except that green is not a creative color.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 26 Apr 2019 @ 12:18pm

    THANK THE FSM WE CAN PROTECT THIS INVENTION!!!!!!!!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2019 @ 12:43pm

    At what point will they start suing importers? I mean, the bananas they import are clearing infringing on their copyright, since some have all of those design features!

    reply to this | link to this | view in chronology ]

  • identicon
    norahc, 26 Apr 2019 @ 12:56pm

    Well, to be fair maybe they felt that Naruto needed a copyrighted banana to go with his selfie.

    reply to this | link to this | view in chronology ]

  • icon
    afn29129 David (profile), 26 Apr 2019 @ 1:02pm

    Turd costume

    Does Rasta also sell a turd costume? Oh! So that is what their lawyer actually looks like IRL.

    reply to this | link to this | view in chronology ]

  • icon
    FlatZOut (profile), 26 Apr 2019 @ 1:20pm

    All I can think about now is that “I’m a Banana” song on YouTube. Dangit, Masnick. Now not only am I hungry, I have that dang song in my head.

    No offense btw.

    reply to this | link to this | view in chronology ]

    • icon
      Bamboo Harvester (profile), 26 Apr 2019 @ 1:53pm

      Re:

      Speaking of that...

      Didn't the Chiquita and BIC commercials in the sixties have actors in banana suits?

      Might be a prior art claim there...

      reply to this | link to this | view in chronology ]

      • icon
        FlatZOut (profile), 26 Apr 2019 @ 3:24pm

        Re: Re:

        I don’t know if they did. I wasn’t born in the sixties. I was born in December 1999, so I wouldn’t have any idea.
        That’s a job for research, my friend.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Apr 2019 @ 5:38am

          Re: Re: Re:

          Dammit millenials, too lazy to do even a bit of research! What's next, smoking weed and making barbecue in my backyard all day, no?

          reply to this | link to this | view in chronology ]

          • icon
            Bamboo Harvester (profile), 27 Apr 2019 @ 6:10am

            Re: Re: Re: Re:

            Yeah, these kids today with their loud devil music...

            /s

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 27 Apr 2019 @ 8:19am

            Re: Re: Re: Re:

            Got something against bbq?

            reply to this | link to this | view in chronology ]

          • icon
            FlatZOut (profile), 27 Apr 2019 @ 11:32am

            Re: Re: Re: Re:

            Actually I’m 19 years old. And I don’t listen to heavy metal and I don’t smoke weed.

            reply to this | link to this | view in chronology ]

            • icon
              Bamboo Harvester (profile), 27 Apr 2019 @ 11:51am

              Re: Re: Re: Re: Re:

              Cool. Now wait another forty years, and try to remember YOU WERE TOLD ABOUT THIS...

              Some 20 year old is going to explain to you why you are wrong about what happened not just 40 years ago, but you actually took part in.

              I've had more "kids" tell me that Global Cooling wasn't a "thing" in the late seventies and that the people pushing it were NOT among those who started the Global Warming movement, and "explaining" to me what the Viet Nam war was "really about", then ten years after that was passe all about how war causes PTSD so you have to be careful around veterans, to current day where a hangnail at a formative moment of your psyche can cause PTSD so they need to raid MY retirement funds to get those people "help".

              You'll see similar if you live long enough. And you'll shake your head in wonderment and start saying stuff about those damned kids and their loud music...

              /s

              reply to this | link to this | view in chronology ]

              • icon
                FlatZOut (profile), 28 Apr 2019 @ 7:24am

                Re: Re: Re: Re: Re: Re:

                Dude, relax. I’m not into metal or weed or any of that, and I definitely won’t be into it forty or even any years from now.

                Just relax. I’m more of an “A State of Trance” music instead of Metal. And I definitely won’t drink alcohol and I don’t even see myself having any form of sex.

                So don’t worry.

                reply to this | link to this | view in chronology ]

                • identicon
                  Bobvious, 29 Apr 2019 @ 5:42am

                  Re: Re: Re: Re: Re: Re: Re: Not metal or weed

                  Then you'll be "Heading Up High" in a different way.

                  reply to this | link to this | view in chronology ]

                  • icon
                    FlatZOut (profile), 29 Apr 2019 @ 8:01am

                    Re: Re: Re: Re: Re: Re: Re: Re: Not metal or weed

                    Then you’ll be “Heading Up High” in a different way.

                    Wow, Bobvious. That’s a very clever Armin Van Buuren reference.

                    reply to this | link to this | view in chronology ]

      • identicon
        Bobvious, 26 Apr 2019 @ 4:47pm

        Re: Re: Prior art

        reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 26 Apr 2019 @ 1:30pm

    Independent development...

    I thought copyright claims had to involve actual, you know, "copying". There is nothing in this case to indicate that Kangaroo's costume was not developed independently.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Apr 2019 @ 7:36am

      Re: Independent development...

      Copyright to some is simply a tool for monetary extraction, that's all.

      It does not even have to be similar for a claim to be made, for example look at some of those ridiculous automated takedowns. Some of them were supposedly followed up by a real human review ... uh huh sure it was.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2019 @ 1:30pm

    I am unable to tell if the one banana suit infringes upon the copyright of the other banana suit because there is not banana for scale.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2019 @ 1:31pm

    Just think. If it weren't for copyright law what, indeed, would be the incentive for artistic inventors to make a perfectly ripe banana costume? As soon as someone foolishly put in the backbreaking effort to design such a costume it would be buried in a market full of imitators and lookalikes. We might, as a society, forget who INVENTED the perfectly ripe banana costume. Now THAT would be a tragedy.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 26 Apr 2019 @ 1:46pm

    Masnick moans about goofy BS like this, but ignores important stuff like this:

    https://themindunleashed.com/2019/04/google-helping-government-violate-privacy.html

    Very telling...

    reply to this | link to this | view in chronology ]

  • identicon
    Valkor, 26 Apr 2019 @ 2:01pm

    To paraphrase a famous quote...

    Sometimes a banana is just a banana.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Apr 2019 @ 3:57pm

    The Wu Tang Clan's single-copy album can't be released commercially for 88 years:

    https://www.cnbc.com/2019/04/26/wu-tang-clans-rza-wants-album-bought-by-pharma-bro-martin-shkreli.h tml

    That's what you'll get without copyright law.

    reply to this | link to this | view in chronology ]

  • icon
    Peter (profile), 27 Apr 2019 @ 12:57am

    Are they suggesting we design...

    ... a banana costume with sunglasses, then sue Rasta for producing one that looks too similar?

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 27 Apr 2019 @ 7:56am

    Going Bananas

    "The Amazing World of Gumball" Banana Joe, (current) to the Banana Bunch (1968)
    [this was the theme song that went thru my mind]

    https://www.youtube.com/watch?v=XMl6HnhFFIA

    {yeah I'm old have a Werthers, get off my lawn!}

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Apr 2019 @ 8:44pm

    How many possible costumes are there

    Rasta Imposta provides this Court with twenty-one banana costumes available in the marketplace that are easily distinguished from Rasta Imposta’s design

    This line stood out to me, because while it says there are different designs, it to me implies that it is a small number. Copyright was originally created for books, and it difficult to count how many possible books there are, and literally impossible to actually create them all. I can understand an argument for copyrighting a finite number of books from an effectively infinite amount of possible books, but the number of possible costumes is a finite resource.

    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.

    There are 8 features listed, but for each of them there is a small number meaningfully distinct options of options, and fewer good ones. For example with the length of the costume(a) adding an inch or two will likely not be seen as different from a copyright perspective, while a costume with a banana the height of the wearer and a costume with the banana half their height are different.

    In addition, (g) is just a simplest way to make the costume look like a banana, almost all costumes and clothing will have seams so they are used to mimic the ridges. Also (a) and (c) are similar, with (c) being the lengths of both halves, and (a) is the length of them combined.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Apr 2019 @ 7:39am

    Think I'll sue everyone everywhere who is wearing underwear, as soon as they approve my copyright applications. No one, I say No One will copy my underwear!

    Filthy pirates stealing my underwear.

    reply to this | link to this | view in chronology ]

  • icon
    allengarvin (profile), 28 Apr 2019 @ 3:53pm

    This is my banana!

    This is my banana. There are many like it, but this one is mine. My banana is my best friend. It is my life. I must master it as I must master my life. Without me, my banana is useless. Without my banana, I am useless. I must peel my banana true. I must peel faster than the monkey who is trying to steal my bananas. I must eat it before he eats it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Apr 2019 @ 1:47am

    ...

    There has got to be a Monty Python sketch in here somewhere.

    reply to this | link to this | view in chronology ]

  • identicon
    BananaMan, 29 Apr 2019 @ 4:43am

    Bananas

    And just HOW MANY ways are there to visualize a banana? Go ahead, list them, I will wait......

    reply to this | link to this | view in chronology ]

    • icon
      FlatZOut (profile), 29 Apr 2019 @ 8:03am

      Re: Bananas

      There are many appropriate ways to visualize a banana, and there are many inappropriate ways to visualize a banana. I prefer the appropriate visualization instead of the inappropriate visualization.

      reply to this | link to this | view in chronology ]


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