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Court OKs Copyright for Banana Costume’s Artistic Features (1)

Aug. 1, 2019, 2:02 PMUpdated: Aug. 1, 2019, 7:07 PM

A battle over banana costumes continues in federal court with one manufacturer under order to stop selling full-body banana suits because they likely infringe another’s valid copyright.

The U.S. Court of Appeals for the Third Circuit Aug. 1 affirmed a lower court’s order stopping Kangaroo Manufacturing Inc. from selling banana costumes that are confusingly similar to plaintiff Rasta Imposta’s copyrighted design. Rasta’s copyright is valid because it didn’t “monopolize the underlying idea” of a banana, the court said.

The ruling highlights how courts are applying the test the U.S. Supreme Court’s laid out in Star Athletica LLC v. Varsity Brands Inc. for separating an object’s artistic elements—which can be protected by copyright—from unprotected elements that simply allow an object to function.

In Star Athletica, the high court found the two-dimensional patterns on cheerleader uniforms were eligible for protection because they could exist apart from the outfits.

The banana costume, likewise, is a “useful article,” but its artistic, non-utilitarian features are “separable” and “capable of independent existence as a copyrightable work: a sculpture,” the appeals court found.

“It’s an example of how Star Athletica brought more clarity to determining copyrightability of the aesthetic aspects of useful articles,” Joshua M. Dalton, who co-leads Morgan Lewis & Bockius LLP’s trademark and copyright litigation practice, said.

The decision to affirm a preliminary injunction against Kangaroo turned on the fact that it “copied virtually every one of Rasta Imposta’s design choices” for the banana costume—despite the court acknowledging the costume had a low level of protection, James G. Gatto, a partner in Sheppard Mullin Richter & Hampton LLP’s intellectual property practice group, said.

Halloween costume maker Rasta Imposta obtained a copyright registration in 2010 for its full-body banana costume. After the business relationship between Rasta and its manufacturer broke down, Rasta discovered that a new company started by the manufacturer’s founder, Kangaroo Manufacturing Inc., was selling its own full-body banana costume.

Rasta sued for copyright infringement, but Kangaroo said Rasta couldn’t hold a copyright in the costume because it was utilitarian. The U.S. District Court for the District of New Jersey granted Rasta a preliminary junction, and Kangaroo appealed. The Third Circuit affirmed the injunction.

Rasta’s copyright is valid because it didn’t “monopolize the underlying idea” of a banana, the court said. “There are many other ways to make a costume resemble a banana,” the court said, noting over 20 examples of banana costumes with different colors, shapes, and other distinct features that wouldn’t infringe.

Rasta’s banana costume’s “combination of colors, lines, shape, and length” can exist apart from the garment as a separate sculpture, the Third Circuit said. However, the arm, leg and head holes can’t be protected as artistic features because they simply allow the costume to be worn, it said.

The court also rejected Kangaroo’s argument that Rasta’s copyright was invalid because the banana depicted a natural object.

“The essential question is whether the depiction of the natural object has a minimal level of creativity. Rasta’s banana meets those requirements,” the court said.

Judge Thomas M. Hardiman wrote the opinion, joined by Judges Michael A. Chagares and Mitchell S. Goldberg.

Paykin Krieg & Adams, counsel for Kangaroo, didn’t immediately respond to a request for comment. Flaster Greenberg represented Rasta Imposta.

The case is Silvertop Assocs. Inc. dba Rasta Imposta v. Kangaroo Mfg. Inc., 3d Cir., No. 18-2266, 8/1/19.

(Updated with additional reporting throughout)

To contact the reporters on this story: Blake Brittain in Washington at; Alexis Kramer in Washington at

To contact the editors responsible for this story: Jo-el J. Meyer at; Keith Perine at