(CN) – The family of Betty Boop creator Max Fleischer does not own a copyright or trademark to the classic big-eyed cartoon character, and cannot sue others for using her image, the 9th circuit ruled Wednesday.
The federal appeals court in Pasadena affirmed a lower court’s finding that several makers of Betty Boop merchandise had not infringed on Fleischer Studios’ copyright because the company could not show that it had one.
Fleischer created Betty Boop in the 1930s, but sold Paramount Pictures the rights to the character in 1941. After he died in 1972, Fleischer’s family started Fleischer Studios and worked to buy back the intellectual-property rights to the character throughout the 1980s and ’90s, according to the ruling.
When the defendants in the case – A.V.E.L.A., Art-Nostalgia.com, X One X Movie Archive and Leo Valencia – began selling Betty Boop merchandise, Fleischer Studios sued them for copyright and trademark infringement.
A.V.E.L.A. licenses its products through a copyright to restored vintage posters of Betty Boop, the ruling states. Fleischer Studios also licenses the Betty Boop image for dolls, toys and other products, and argued that its “intellectual-property-rights purchases” gave it exclusive ownership.
The heart of the issue was the chain of ownership put forward by Fleischer Studios, which claims Paramount transferred the rights it bought from Max Fleischer to UM&M TV in 1955. That entity in turn transferred the rights in 1958 to National Telefilm Associates, which became Republic Pictures in 1986. About 10 years later, Republic Pictures transferred the exclusive copyright to Fleischer Studios.
Fleischer Studios’ scenario failed to convince U.S. District Judge Florence-Marie Cooper, however. She found for the plaintiffs, ruling that the company had failed to show proof for any of the purported transfers that occurred after Paramount purchased the rights.
The three-judge appeals panel agreed, 2-1.
The 1955 purchase agreement between Paramount and UM&M “explicitly provided that the right to the Betty Boop character copyright was retained by Paramount, rather than transferred to UM&M,” according to the panel. The judges found that Paramount instead transferred the copyright to Harvey Films about three years later.
“It is clear that Paramount did not transfer the copyright to the Betty Boop character to UM&M,” Judge J. Clifford Wallace wrote for the court. “Because the chain of title is broken, and the only chain of title at issue in this appeal is this one involving UM&M, the District Court properly dismissed Fleischer’s copyright-infringement claim.”
The panel was equally unconvinced by Fleischer Studios’ trademark claims, which the District Court had dismissed for lack of evidence.
“Even if Fleischer owns trademarks in Betty Boop, it cannot assert a trademark infringement action against A.V.E.L.A.,” Wallace wrote.
“Given that A.V.E.L.A.’s use of Betty Boop is functional and aesthetic, and because ruling in Fleischer’s favor would prevent the Betty Boop character from ever entering the public domain, Fleischer’s infringement claim is barred.”
Writing in dissent, Judge Susan Graber objected to the majority’s all-or-nothing view on Fleischer Studios’ chain-of-ownership argument.
“One chain of title leads through UM&M and another leads through Harvey Films, but both paths lead to plaintiff,” Graber wrote. “The majority inexplicably fails to respond to that theory, asserting only that plaintiff waived the argument that it possesses the copyright via the Harvey Films chain of title.”