Halloween Edition: Copyright for Banana Costume is upheld on A-PeelOctober 25, 2019

The Third Circuit recently held that a banana costume qualified for copyright protection as Rasta Imposta, a retail wholesaler of Halloween costumes, sued Kangaroo Manufacturing, a costume manufacturer, for copyright infringement, trade dress infringement, and unfair competition after Rasta discovered Kangaroo selling a banana costume that resembled one of Rasta’s costumes without a license. The costumes at issue can be seen below:

The District Court granted a preliminary injunction against Kangaroo and on appeal, the Third Circuit addressed whether the non-utilitarian, sculptural features of the costume were copyrightable. 

The copyrightability of clothing and other useful articles had long been an issue without much direction, however, in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017), the Supreme Court ruled that a “useful article’s design feature is eligible for copyright protection if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium”.

Relying on Star Athletica, the Third Circuit determined that the “banana costume’s combination of colors, lines, shape, and length (i.e., its artistic features) are both separable and capable of independent existence, and thus are copyrightable.”

Kangaroo argued that a depiction of a natural object is unoriginal and there could be no infringement because both costumes are of a generic banana. The court disagreed and pointed out that the originality requirement for copyright protection is quite low while going on to explain that “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).”

It’s important to note that this dispute came to fruition after a business relationship between the parties “expired”. Kangaroo’s founder had previously purchased and resold thousands of Rasta’s banana costumes and at all times was aware of Rasta’s copyright registration (VA-1-707-439) in the banana costume. And while some may say that this decision effectively monopolizes Rasta’s hold on the banana costume market, they provided over twenty examples of banana costumes that they conceded would be non-infringing.

A copy of the decision can be found below: Silvertop Associates Inc., DBA Rasta Imposta v. Kangaroo Manufacturing, Inc., No. 18-2266 (3d Cir. Aug. 1, 2019)

Brandon W. Clark is the Chair of the Copyright, Entertainment & Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit www.ipmvs.com or contact Brandon directly via email at brandon.clark@ipmvs.com

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