Third Circuit affirms copyright for banana costume
A US federal court has ruled that elements of a costume are protectable by copyright, in a case involving a dispute over rival banana costumes.
In its decision, issued yesterday, August 1, the US Court of Appeals for the Third Circuit ruled that a banana costume’s “non-utilitarian, sculptural features are copyrightable”.
As the Third Circuit noted, the case originated from a “business relationship that went bad”.
In 2010, New Jersey-based Rasta Imposta registered a design for its full-body banana costume with the US Copyright Office. The New Jersey company sold the costumes on to Yagoozon, whose founder went on to form a separate company called Kangaroo Manufacturing.
After Rasta and Yagoozon’s business relationship ended, Kangaroo began selling its own banana costumes, which were the subject of a copyright infringement complaint from Rasta after failed settlement talks.
The US District Court for the Eastern District of Pennsylvania granted an injunction against Kangaroo, prompting an appeal to the Third Circuit.
At the heart of the case, the Third Circuit said, was whether the non-utilitarian, sculptural elements of the costume design could be separated and exist independently from the costume’s useful features.
“Those sculptural features include the banana’s combination of colors, lines, shape, and length,” the court explained.
According to the Third Circuit, Kangaroo had erroneously argued that it should adopt a “divide-and-conquer” approach by analysing each of these elements separately and finding them to be unoriginal or “too utilitarian in isolation for copyright”.
Supreme Court precedent in Star Athletica v Varsity Brands dictated, the Third Circuit ruled, that these elements should be analysed as a whole.
“Thus the separately imagined banana—the sum of its non-utilitarian parts—is copyrightable,” the decision read.
Kangaroo also argued that “depictions of natural objects in their natural condition can never be copyrighted”.
According to the Third Circuit, however, Rasta’s banana design met “a minimal level of creativity” required for protecting depictions of natural objects.
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