Techdirt: Earlier this year we wrote about a truly awful Supreme Court ruling concerning whether or not the design of cheerleader costumes could be covered by copyright. As we had explained earlier, this ruling could have a major impact on a variety of industries. The key issue is that "useful articles" are not supposed to be subject to copyright. Historically, that's always meant that the actual design of clothing or costumes is not protected by copyright law. And that's been a really good thing. It's inspired much more competition and innovation over the years in the clothing world.
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What an interesting read. I had no idea that cheerleading costumes had become a topic for the supreme court to discuss, but the idea of a specific design being copyrighted is certainly one that sounds controversial. From different standings, I would think original costumes may be eligible for copyright, but the author of the article makes a good point about how different fashions can encourage competition and affect the fashion industry worldwide. On that note, the banana costume debate is one that I had very little interest in when reading it, just because it seemed fairly childish to go by the name "rasta impasta." But, it does bring up an interesting argument, that I am curious to hear the result of. I mean, who really was the first person to create a banana costume??
This is a little absurd, but the real implications from the supreme court ruling are plain. " this "new test" (basically whether you can "separate" the design from the useful article, and if the separated design is copyright-eligible), would lead to a lot of lawsuits pushing the boundaries of that test" which honestly throws into question just what boundaries will be pushed. How it switched from "the actual design of clothing or costumes is not protected by copyright law" to separating the design from the item seems like it really has opened the floodgates for litigation in our already very litigious culture. Competition for the best product, or in this case the best banana costume could only mean good things for those people who want the best banana costume out there, but if someone is able to claim copyright on this, that shuts the door on other iterations too close to the copy right.
Let’s all take a second to appreciate that in this article talking about copyright, which has blossomed into a more serious debate than originally thought, is using a banana Halloween costume as its main example. This is truly America at its best. Let’s take a quick look at the legal description that the prosecution presented: “The appearance and trade dress of Rasta Imposta’s distinctive Banana Design is identified by a combination of arbitrary and distinct visual elements which make up its overall appearance, design, and trade dress, including, but not limited to the Banana Design’s bright yellow color with dark tips at the ends, the lines running down the sides, the Banana Design’s placement of the banana ends, and the cutout holes in the Banana Design.” Ah yes, because the Rasta Impasta banana costume does not draw its design from anything that already exists. This design is original and is the creative creation of one singular designer. Anything else that looks like this costume is obviously illegal.
I can see a lot of issues arriving out of this ruling, as the article is beginning to point out regarding halloween costumes. Based on the prior rules and laws that govern copyright of clothing, something would have to be truly unique for it to be considered protected. Under this ruling, you could potentially end up with many companies suing over clothing that is anything but unique, as portrayed in this particular issue with the banana. The banana costume in particular is incredibly problematic, because it could present virtual-monopoly situations over clothing that has no identifying qualities. What's the difference between a banana costume and a plain black hoodie when using the same rules? Would this simply mean whichever company makes the complaint first or claims that they were the first to produce basic clothing items would have the exclusive right to produce something that has no basis in "uniqueness" whatsoever?
Since SCOTUS opened the door on this one, they are going to have to be the ones that slams it shut on the stupidity of this lawsuit. Copyright law has been pretty finite over the years as to what is and what is not abled to be protected. The problem arises when the courts, and in this case, the Supreme Court makes a ruling that is so broad, it paves the way for companies to tie up themselves in litigation for years. Not really a smart move. Let’s break this down. Let’s say that I am a company that for the last 30 years has been making banana costumes. Two companies both purchase product from me, have it branded with a name, and sell it in their stores. Now imagine that 1 company sues the other claiming copyright. Pretty much what we have here in this matter. The problem is that neither of them really own the design. They are only selling the product. Now if Rasta really is making their own costumes then it would appear that they are violating the copyright of the company that makes the costume for Kmart. To echo what Brennan stated, what about things like the plain black hoodie or the little black dress. Much in the same way that a fragrance cannot be protected, clothing shouldn’t be either and this includes costumes. SCOTUS needs to step up and close the door they opened, lock it and throw away the key.
This article is a continuation of the the ridiculousness of the cheerleading copyright which I had stated would open the door to some bizarre presidents in regards to copyright is the clothing industry, an industry that for the most part was outside the scope of copyright. But I expect more lawsuits and such will arise do to the original ruling in regards of the cheerleading uniforms. My only hope is that these further case will allow for more definitive case law on the issue, because right now it's ridiculous. Part of me really wishes I could be the court room during proceedings so I could hear people have to argue about a banana costume with dry legal language. At the same time I'm pretty sure I would probably end up just yelling at people that "it is a damn banana how else is it going to look you idiots." But eh it might be worth it.
I’ve been thinking lately about the differences between copyright and a patent. The length of time is very different: 70 years for a copyright and only 20 for a patent. Both of them protect the person who invented or discovered something and both have to involve something that is not general knowledge and is in some way unique. The shorter length of time makes a lot of sense, or split the difference and have them both be in effect for the life of the inventor so he or she can control their invention.
I’ve been thinking about fan fiction and how it must, be an underground and somewhat shady activity because it is illegal. I understand an author wanting to control how their world is portrayed, but that is not how it works with any other invention. Why are creative inventions treated with more respect than scientific inventions? Once an idea has been floating around in the world’s consciousness, does it become “general knowledge”? The song Happy Birthday, Bob Dylan, and The Beatles have become the songs that everyone knows and sings as folk songs. How long does it take for an idea to become general knowledge? Does it change with how popular it is?
On one hand, part of me agrees that we need to protect copyright for truly great costume designs. But the other part of me is hesitant because like the article has pointed out, clothing is not protected by copyright law and therefore has inspired much more competition and innovation over the years in the fashion world. However I do not have any torn feeling about this ridiculous lawsuit. When I read this article my first thought was “seriously?”, because we have all seen banana costume everywhere. A quick search on amazon (https://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Daps&field-keywords=banana+costume) would suffice to show how ridiculous it is to claim copyright on a banana costume and pick and choose one other company to sue. How could Rasta Imposta prove that they are the first ever original designer of a banana costume in the history of costuming? Do they have original design sketches that are dated dozens of years ago? Wil they sue all of the other companies who make banana costumes as well?
I have absolutely loved following this story and many like it over the past two years of doing comments. I think the title of this article is good for a lot of reasons because it lets the reader know that there is an issue and something real to talk about but it's also not lost on whoever wrote this that the concept of all of this is maybe just a little ridiculous. We talked a lot in PPM recently about what a patten means and when it is justified and when it is not and if what we thinks is justified matters at all. the answer is that it doesn't matter at all what we think because a banana costume seems obvious to me, but someone had to wear that banana costume first, and someone had to scribble the idea on a napkin in a bar, and whoever that was deserves the right to their napkin. They deserve to feel like what they do matters and has worth, because then people who make art or who create wont think that what they do is important and maybe people will stop scribbling their ideas on napkins, and we can't have that.
Is there no end to what people will try to use the law to create their own profit? To think that one can copyright something that has a basic element of design that goes beyond what someone has created. Will this eventually turn into the monkey photo where people can’t actually own it because nature created it originally? Or how deeply will this go into other fields? Will this mean that one day we have to worry about someone copyrighting the basic construction of a flat or a platform? This is setting odd standards and will very quickly become a slippery slope that could see no end unless some judge steps up and says no. The sad thing is nothing can be done until a court case is brought up with such a level of stupidity that it is fought all the way up to the Supreme Court and can then be corrected.
I’m going to start by saying I think the authors analysis of the Cheerleader copyright case was more than a bit biased. The idea that design can go beyond “useful article”-ness makes a lot of sense actually. For example, one can’t copyright a shirt. But if one made significant modifications to a shirt that went beyond the standard usefulness then it would make sense that designer should have some control over that design (maybe not seventy years worth of control but still). However, I do see why the author would find this Banana lawsuit silly. Because truthfully, the artist hasn’t done much designing (that I can see) besides replicating a banana. This is an interesting test case though (and I suspect that’s the real reason this lawsuit happened in the first place, to test the limits of this new precedent), as to how far these copyright precedents will take you. Either way, I wouldn’t say this lawsuit is “ruining Halloween” like the author says, just making it a bit more interesting.
I remember commenting on the cheerleader uniform article many moons ago, and I had no idea the effect that that case would have on the future of costuming and clothing in general. This is a really weird grey area case. I mean, yeah, the costumes look pretty much identical. But that's because they're both bananas. Most bananas look pretty similar, at least in my admittedly limited banana experience. With costumes that are just simple everyday objects, it's really difficult to identify an actual original designer. Additionally, if it doesn't qualify as unique, then it shouldn't be subject to this at all. I completely agree that unique, special costume design should be protected by copyright, since it is that designer's property. But then really how can uniqueness be quantified? This is a very sticky situation and I'm not entirely sure what the answer is. Yes, a banana costume seems pretty standard, but someone had to be the first person to come up with the structure and layout of the costume in an effective way, and every banana costume manufacturer since then has been copying that design.
There has been a lot of talk about copyright over the past few years with cheerleader outfits, monkey selfies, Mickey Mouse, and Happy Birthday. But I think this takes the cake. Although, I think Rasta Imposta has a leg to stand on. I know that it is a banana and all bananas are, essentially, the same and any banana costume of this variety is also going to operate in very much the same manner. I suppose one could have a horizontal banana costume. Unlike a cheerleader outfit, which essentially comprises a skirt and tank top, the banana is a unique pattern and outfit. Granted it may not be complex, but it certainly doesn’t fall under the category of standard articles of clothing that can’t hold a copyright. In the end, I guess it comes down to what makes Rasta’s banana different from all other bananas? And does that difference make it unique enough to copyright?
The "useful article test" is interesting in concept. An object is defined as a useful article if it is an object with a function, and the design of a useful object can only be covered by copyright if the design of that object can be separated from the object itself (see Star Athletica L.L.C. v. Varsity Brands, Inc.). The useful article exception was really meant to stop people from trying to copyright the designs of paper clips or pencils. But that exception is especially interesting when applied to Halloween costumes, which are by design meant to merely portray already designed costumes with previously designed defining elements. But Rasta Imposta's banana costume is clearly meant to just portray a banana, so can Rasta Imposta really claim copyright? There is no design element that can be extracted from their banana costume and applied to another medium, as in the cheerleader costume case.
Earlier this year I read the other article about how copyright may or may not apply to the design of cheerleader costumes and how the Supreme Court's ruling could affect many other areas of design with regards to copyrights. This newest issue is much more absurd. The fact that a company is actually trying to claim copyright over the "distinctive elements" of a banana is ludicrous. Personally I think that copyrights should apply to clothing, but only in such a way when it is more complex. If it was some sort of highly developed and unique costume then I could see Rasta Imposta having a case to argue that they came up with a unique design instead of the most generic copy of a banana possible. As the case stands now, I hope that the Supreme Court rules in favor of a lack of copyrights for costumes so that they competition in the clothing design field stays healthy and innovative.
First of all, I’m amused by the writing style of this article, I like the snarkiness, but some of the author made make less sense upon reading the document itself. For example, the overall costume is called the “Totally Ghoul Banana Men’s Halloween Costume” and is abbreviated to the brand name for the sake of the complaint. (Side note: why on earth is this a men’s costume. It is a banana. It is shaped like a banana. It isn’t like the fit would have to be different for men or women.) I agree with the author that obviously it is banana shaped and banana, but Rasta Imposta was apparently the first company to make a banana costume, or at least they claim to be. And, even though yes, a banana looks like a banana, these are the same banana costume. As Rasta Imposta points out, the clothes the man is wearing under the banana costume are the same, and Rasta Imposta does have the copyright for the banana costume design. When I looked online, there were some companies other than Rasta Imposta that sold banana costumes, but Fun World’s banana costumes have a hat as the top point of the banana rather than a cut out hole for the face and it general Rasta Imposta does seem to have most of the banana costumes on the market. Sure, it seems silly to sue over a costume as simple and seemingly uncreative as a banana, but Rasta Imposta does have the copyright, and given that Kmart was selling the original banana costume for years before cutting Rasta Imposta out of the equation and starting to sell a near identical knock-off, it seems pretty apparent that Kmart stole the costume.
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