This Costume is Bananas: Third Circuit Judge Thomas Hardiman wrestles with validity of copyright for full-body banana costumes. 

An interlocutory appeal in copyright infringement litigation between Kangaroo Manufacturing and Rasta Imposta raises a question of first impression – whether a banana costume’s “costume’s non-utilitarian, sculptural features” are copyrightable. 

Kangaroo Manufacturing sells a banana costume that it concedes is “substantially similar” to the banana costume sold by Rasta Imposta, but “contends the banana is unoriginal because its designers based the design on a natural banana,” arguing that “depictions of natural objects in their natural condition can never be copyrighted.”

The Third Circuit panel agreed that “if copyrighting a design feature would effectively monopolize an underlying idea” then the so-called merger doctrine “exists to deny that protection,” and noted that merger “is most applicable where the idea and the expression are of items found in nature, or are found commonly in everyday life.”

However, the panel concluded that Rasta’s banana costume would not effectively monopolize the underlying idea “because there are many other ways to make a costume resemble a banana.”

Here too, copyrighting the banana costume’s non- utilitarian features in combination would not threaten such monopolization. Kangaroo points to no specific feature that necessarily results from the costume’s subject matter (a banana). 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).

Interesting side note: line-drawing in this space is fraught with peril!  Also recently in the news:  It looks like a duck…but not enough like the other duck. 

And finally, note that intellectual property litigation is not just banana costumes and inflatable ducks.  Even in such seemingly frivolous context, the line-drawing is a challenging task.  Hence, NJCJI’s continued opposition to the “patent troll” legislation, which would add state Consumer Fraud Act remedies to the mix.