Copyright Law

3rd Circuit rules maker of banana costume is entitled to 'fruits of its intellectual labor'

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A federal appeals court ruled Thursday that the maker of a full-body banana costume was entitled to an injunction against a rival company that made a look-alike garment.

The 3rd U.S. Circuit Court of Appeals at Philadelphia said costume-maker Rasta Imposta had shown a reasonable likelihood it would win its copyright claim against Kangaroo Manufacturing.

“Because Rasta established a reasonable likelihood that it could prove entitlement to protection for the veritable fruits of its intellectual labor, we will affirm,” the court said. Law360, Courthouse News Service and Bloomberg Law have coverage.

The author of the opinion was Judge Thomas Hardiman, who was said to be on President Donald’s short list last year for the U.S. Supreme Court.

Hardiman cited a 2017 Supreme Court decision establishing that useful articles such as apparel could still obtain copyright protection if creative elements can be perceived as a 2D or 3D work of art that is separate from the garment.

The Supreme Court case, Star Athletica v. Varsity Brands, held that 2D design patterns on a cheerleading uniform could be copyrighted.

Hardiman said Rasta Imposta could copyright its costume as a sculpture with color, lines, shape and length. Artistic elements in its costume are separate from the garment and eligible for copyright, he said.

“That sculpted banana, once split from the costume, is not intrinsically utilitarian and does not merely replicate the costume, so it may be copyrighted,” he said.

Copyrighting the banana costume would not monopolize the underlying idea “because there are many other ways to make a costume resemble a banana,” Hardiman said. Hardiman noted differences in Rasta Imposta’s costume that included its particular shade of yellow, black-tip ends and curved shape.

The banana “is not a crumpled pile of fabric; it is a recognizable rendering of a banana,” Hardiman said.

banana costumes Image from Judge Thomas Hardiman’s opinion.

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