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7th Circuit Squishes Banana Lady’s Suit

CHICAGO (CN) - A woman who sings and dances in a banana costume does not have a copyright-infringement claim related to videos of her posted on Facebook, the 7th Circuit ruled.

The opinion, which Judge Richard Posner wrote in his characteristic wry humor for a three-judge panel, includes a photo of one such performance by Catherine, the "Banana Lady," Conrad.

It describes how Conrad signed on to perform a "singing telegram" at a credit union trade association event with the alleged caveat that no member of the audience take any photos or videos of her performance, except for personal use.

That personal-use videos would exclude the posting of such photos to Facebook struck Posner as "somewhat implausibl[e]."

The case had reached the federal appeals court after a federal judge found no merit to Conrad's claim that the credit unions, the trade association and their employees had infringed on her intellectual property rights.

She had filed the suit pro se, and the 7th Circuit affirmed dismissal Monday.

"Conrad has copyrights, which we'll assume are valid, on photographs and sculptures of her in her banana costume," Posnor added. "She has also registered a copyright on the costume itself, but there is doubt (not necessary for us to resolve) about the validity of that copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product." (Parentheses in original.)

Her performance itself is not copyrightable because it is not "fixed in any tangible medium of expression," such as dance notation, according to the ruling.

Posner conceded that attendees may have violated the Copyright Act, which forbids unauthorized video or tape recording of a musical performance.

Nevertheless "Conrad does not invoke either provision, and probably couldn't because one of the arrangers advised the audience of the prohibition at the end of the performance - and Conrad doesn't contend that any photos or videos of it were posted on the internet before the performance ended," the 8-page opinion states.

Conrad has a long history of litigation against event organizers.

She previously sued organizers who mailed event attendees a postcard that had a picture of her in her banana costume. She sued another for declining to post a video of her performance on their website after she demanded a $40,000 license fee.

In addition to dismissing Conrad's case, Posner felt it incumbent to remark on "her abuse of the legal process by incessant filing of frivolous lawsuits."

"This is at least the eighth case she's filed in federal court since 2009, and she has filed at least nine cases in state court just since 2011," the opinion states. "She appears not to have won any judgments, but she did obtain settlements in the first three federal suits that she filed."

Posner chided the Western District of Wisconsin for continuing to let Conrad sue in forma pauperis.

He said the court should enjoin Conrad from filing further suits until she pays her litigation debts, which amount to over $130,000 for defendants' fees and costs.

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