Banana Costume Copyright Assailed at Third Circuit

PHILADELPHIA (CN) — Defending similarities between competing banana costumes, a lawyer urged the Third Circuit on Wednesday to overturn a copyright injunction.

“They look very similar,” said David Schrader of the firm Paylin Krieg Adams, because they are both based off of bananas one would find “in nature.”

“I thought the counsel would wear the costumes,” U.S. Circuit Judge Michael Chagares laughed.             

Schrader’s client, Kangaroo Manufacturing, took to the Philadelphia-based appeals court after a federal judge enjoined it from selling products that infringed on the banana costume copyrighted by Rasta Imposta in 2010.

Noting that it had a former business relationship with the founder of Kangaroo, Rasta says Kangaroo knew the costume was copyrighted and had even sold the costume for Rasta before a falling out.

In the ruling for Rasta last year, U.S. District Judge Noel Hillman concluded that, apart from variations in the shade of yellow, there was not enough of a difference between the two costumes.

But Schrader argued Wednesday that there is nothing original about Rasta’s banana costume, such as brown spots or perhaps sunglasses, that would make it protectable; it is simply a ripe, yellow banana.

“So a costume of a terribly underripe or an overripe banana is copyrightable?” U.S. Circuit Judge Thomas Hardiman said. “But one of a normal off-the-shelf banana is not copyrightable?”

Schrader says not exactly, but pressed that there are only so many ways a banana can look.

“It was designed to look like a banana in nature,” Schrader said. “There is no artistic twist.”

Opposing counsel Alexis Arena disputed meanwhile that Rasta’s banana costume is uninspired.

“There are so many ways to conceive a design of a banana,” said Arena, of Flaster Greenberg law firm. “And they conceived it exactly as ours.”

“The shape has to be a banana, otherwise it’s not a banana costume,” Judge Hardiman pushed back.

Arena agreed, but noted that it was the design of the black tips, the two vertical lines and the curvature on both banana costumes that justify an infringement.

On rebuttal, Schrader called it a clear-cut case.

“It was designed to look like a banana, and it looks like a banana,” said Schrader.

U.S. District Judge Mitchell Goldberg rounded out Wednesday’s panel, sitting by designation from Pennsylvania’s Eastern District.

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