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.
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