Copyrighting a Banana? That’s Bananas!
Art Law

Copyrighting a Banana? That’s Bananas!

A recent decision from the Third Circuit Court of Appeals concluded that even though there is nothing original about a banana, it may nevertheless be subject to copyright protection if it is sufficiently creative. The court applied the recent United States Supreme Court decision in Star Athletica v. Varsity Brands , which clarified when certain functional apparel may be subject to copyright protection. The Third Circuit applied that analysis to a highly-coveted banana costume. The dispute initially arose from a bruised business relationship between Silvertop Associates, Inc. (d/b/a Rasta Imposta), a Halloween costume manufacturer, and Yagoozoon, Inc., a costume purchaser and resaler. Shortly after the business relationship spoiled, Rasta Imposta discovered Kangaroo Manufacturing Inc., a company founded by the same man who founded Yagoozoon, selling a substantially similar version of its banana costume—and thus, violating its copyright: Rasta sued Kangaroo for infringing Rasta’s copyright, and the district court granted a preliminary injunction to keep Kangaroo from selling the infringing banana suit. Kangaroo appealed the injunction arguing the copyright registration was improperly granted, making the banana costume fair-game to manufacture and sell. Kangaroo argued the banana costume was un-copyrightable material for two main reasons: (1) a banana costume is useful […]

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