Copyright Law

Now in the court of a-peels: A copyright dispute over a banana costume

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bananas pile

Photo by Hanna_photo/

If you search the internet for banana quotes, you’ll find this one, reportedly uttered by Microsoft founder Bill Gates: “Intellectual property has the shelf life of a banana.”

That quote may be apropos in a copyright case over banana costumes being heard by the 3rd U.S. Circuit Court of Appeals at Philadelphia.

On the one side is Kangaroo Manufacturing, which sells items including an emoji poop spinner and a pelican pool float. But it can’t make a banana costume because of a copyright injunction issued by a federal trial judge.

A lawyer for Kangaroo Manufacturing, David Schrader, urged the 3rd Circuit to overturn the injunction Wednesday, Courthouse News Service reports. Kangaroo Manufacturing’s banana costume resembled that of costume-maker Rasta Imposta only because both are based on bananas that would be found in nature, he had argued.

There is nothing original about Rasta Imposta’s costume, he said, that would make it protectable by copyright, according to the Courthouse News account. There are no sunglasses, no brown spots or anything else distinctive, Schrader said.

On the other side is Alexis Arena, the lawyer for Rasta Imposta. She argued that there are many ways to conceive of a banana design, and Kangaroo Manufacturing’s version was conceived “exactly as ours.”

Rasta Imposta noted that a Kangaroo-related company had once sold its banana costume, but the business relationship frayed.

The New York Times covered the dispute last June when it was before a federal trial judge in Camden, New Jersey. U.S. District Judge Noel Hillman used terms such as “bananafest” and “bananapalooza” at a hearing, and he then issued what the Times termed “a split decision” in favor of Rasta Imposta on two of the issues and in favor of Kangaroo Manufacturing on one.

Hillman had said Kangaroo Manufacturing’s argument would deny copyright protection for Andy Warhol’s famous image of a ripe banana.

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