Now, by closing out this month and a deep dive into the future of copyright law comes a slightly more obscure reference to a recent change we’ve covered previously. Namely, what is, and what is not, protected under copyright when it comes to clothing? We now know that cheerleading uniforms are protected. However, what about bananas? An odd question, but one that the courts will be looking at as a recent case has been filed regarding the design and sale of banana costumes and has prompted questions in a Post-Star Athletica world. Is this the limit to Star Athletica? Has Justice Sotomayor’s comment about killing knockoffs come true already? Is it possible that the follow-up question to Star Athletica may be a banana battle?
The Now-Settled Case
The now-settled case was between Rasta Imposta, and Kmart, which is a subsidiary of Sears. Rasta Imposta had sold a banana costume and had good business relations with Kmart until Kmart notified Rasta Imposta that it would not be purchasing its costumes any longer.
However, at a later time, Kmart purchased a strikingly similar banana costume presented in almost the same way, and used it for the Halloween instead. While the bananas had some differences (e.g., tips and curvatures), yet they remained very similar. However, their similarity may have been because they were both bananas. This is an aspect of useful articles that remains unclear. So, just because the banana could be copyright protected, it does not mean that every banana could be, or that anyone was prohibited from creating a banana costume. Feasibly, one could create a banana costume with a yellow mesh to hide the face completely, or a “banana mask” to give a cartoonish look. There are still other ways to make an expression of a banana, yet, it’s unclear how much protection any of those costumes may receive.
Unfortunately for copyright law, the case appears to have settled within two months of the initial filing, which should prompt a question for intellectual property owners especially for those who deal with a useful article like clothing.
Ramifications of Star Athletica
It is important to reiterate Justice Sotomayor’s concern that copyright may be used to kill knockoffs. If this case is anything to go by, that concern appears to be justified. The Rasta Imposta banana, while fairly plain, seemed to have forced a settlement out of Kmart to avoid a time-consuming litigation. This is mostly due to the two-step test for granting copyrights: First, if the copyrightable elements can be identified, and second, if the work could stand as a fully-protected work if it had not been originated as a useful article.
Effectively, this could potentially include the bananas, as one may imagine them as soft sculptures, or an installation of post-modern art. The procedure given in the two-step test is vague, and in a more lenient view, appears to greatly expand copyright protection, making a settlement a likely event.
At our law firm, we assist clients with legal issues related to business, intellectual property, and e-commerce transactions. Please contact us to set up an initial consultation.