This Lawsuit is Bananas - Fordham Intellectual Property, Media & Entertainment Law Journal
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This Lawsuit is Bananas

This Lawsuit is Bananas

From cheerleading uniforms to banana costumes, copyright law has come a long way. It has been a couple of years since the Supreme Court held in Star Athletica v. Varsity Brands that two-dimensional design patterns on cheerleading uniforms could be eligible for copyright protection under separability analysis.1 Although the extent of Star Athletica’s legal impact is still murky, it certainly holds some weight as evidenced by its appearance in the recent fruit dispute—a copyright infringement suit involving full-body banana costumes and the two companies that make them.2

It all started when Rasta Imposta, a retail wholesaler of Halloween costumes, discovered that its competitor, Kangaroo Manufacturing, was selling full-body banana costumes that resembled Rasta’s without a license.3 Rasta had a copyright for its costume and sued Kangaroo for copyright infringement, trade dress infringement, and unfair competition in New Jersey federal court.4 The court hearings were as ap-peel-ing as you could imagine, and yes, there were a lot of banana puns.5 The evidence presented by both sides certainly did not disappoint as the lawyers brought in four sets of costumes (two from each side) and Rasta’s lawyers submitted photographs of more than 20 other possible banana costumes.6 The lively dispute even involved inspection of a real banana brought to a hearing by Kangaroo’s lawyer. Apparently, it was a “little overripe” but was the best he “could do on short notice.”7 Ultimately, the district court granted Rasta’s motion for a preliminary injunction.8

The banana battle continues. On appeal, Kangaroo asserted that Rasta did not hold a valid copyright in its banana costume.9 The Third Circuit was tasked with analyzing “whether non-utilitarian, sculptural features of the costume are copyrightable by determining whether those features can be identified separately from its utilitarian features and are capable of existing independently from its utilitarian features.”10 Just like the district court, the Third Circuit relied on Star Athletica’s separability test, and found that the artistic features of Rasta’s banana costume (i.e., its color, shape, and length) were separable and capable of independent existence, and therefore copyrightable.11 The court analyzed the costume as a whole and distinguished the artistic features from the merely utilitarian ones, such as the cut-out holes for the arms, legs, and face, which are ineligible for copyright protection.12 It also went on to say that permitting Rasta’s copyright would not monopolize the underlying idea as there are many ways to make a costume resemble a banana, including changing its color, shape, curvature, and tip.13

Additionally, the court rejected Kangaroo’s argument that the costume fails to meet the originality requirement of copyright protection because it depicts a natural object, which reinforced the notion that the originality standard is low and satisfied so long as there is a modicum of creativity.14 The court affirmed the district court’s decision last month, finding that “Rasta established a reasonable likelihood that it could prove entitlement to protection for the veritable fruits of its intellectual labor.”15 Looks like the bananafest is over (for now)—and just in time for Halloween!

  1. See Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).

  2. See Silvertop Assocs., Inc. v. Kangaroo Mfg., Inc., 319 F. Supp. 3d 754 (D.N.J. 2018).

  3. Id. at 760.

  4. Id.

  5. See James Barron, The Costumes Are Bananas. So Is The Lawsuit Over Them, N.Y. Times (Jun. 7, 2018), []

  6. Id.

  7. Id.

  8. Silvertop Assocs., 319 F. Supp. 3d at 773.

  9. Silvertop Assocs. v. Kangaroo Mfg., 931 F.3d 215, 219 (3d Cir. 2019).

  10. Id.

  11. Id. at 222.

  12. Id. at 221.

  13. Id. at 223.

  14. Id. at 222.

  15. Id. at 223.

Sofiya Bavlovych

Sofiya Bavlovych is a second-year evening J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. During the day, she works full-time as a Contracts Specialist in the Corporate Legal Affairs group of NBCUniversal. She holds a B.A. in Political Science from New York University.