DENVER (CN) – A commercial artist does not have a copyright case over the cartoon associated with the T-shirt brand Life Is Good, the 10th Circuit ruled.
Albert and John Jacobs, brothers in the Boston area, began pairing a cartoon they named Jake along with the slogan “Life is good,” for their growing T-shirt business in the 1990s.
But in 2009, they and their company were sued by Gary Blehm, a Colorado commercial artist, in the U.S. District Court for the District of Colorado.
Blehm claimed that the Jake image infringed on a character named Penman that he developed in the 1980s.
Like Jake, the Penmen character has a round head and a disproportionately large half-moon smile on a stick-figure-like body. Blehm said he first sold posters bearing images of Penman in the 1990s, and then spun off that successful business into a Penman T-shirt line, a Penman comic strip and a Penman book.
Penman posters were allegedly popular in the Boston area, and the other products had a national audience.
The Jacobs brothers and their designers nevertheless claimed that they had never heard of Penman before Blehm’s lawsuit.
A federal judge granted Life Is Good summary judgment and dismissed Blehm’s infringement claims after finding insufficient similarity between the Jake images and the legally protectable elements of the Penmen images.
The 10th Circuit affirmed last week, attaching a 12-page chart with 67 images of Jake and Penman engaged in the same activities, whether giving the peace sign, driving golf carts or carrying a ladder.
“The District Court was correct that Mr. Blehm has no copyright over the idea of a cartoon figure holding a birthday cake, catching a Frisbee, skateboarding, or engaging in various other everyday activities,” Judge Scott Matheson wrote for a three-judge panel. “Nor can the Jake images infringe on the Penmen because the figures share the idea of using common anatomical features such as arms, legs, faces, and fingers, which are not protectable elements. … These everyday activities, common anatomical features, and natural poses are ideas that belong to the public domain; Mr. Blehm does not own these elements.”
The decision concedes that “Mr. Blehm’s works do contain some protectable expression.”
Deceptively nuanced features in the Penman stick figure constitute protectable “stylistic choices” that likely “contributed substantially to the success of his copyrighted works,” Matheson wrote.
After a close examination of two sets of the seemingly similar images, however, the panel ruled that the similarities either “have important differences, or are not protectable expression.”
Concentrating on the similar grins of each cartoon, the panel noted that “the idea of a crescent-shaped smile is unprotected.” To determine infringement there, the court would have to find that each smile displayed a substantially similar expression that is important to the overall work, according to the ruling.
“The Penman’s smile is all white, as is Jake’s,” Matheson wrote. “The smiles on both figures take up a large portion of the head. But the Penman’s smile is rounded on the tips, whereas the tips of Jake’s smile are sharper angled. Jake’s smile, by virtue of the size of his head, is much larger compared with his body than is the Penman’s. And although both smiles are white, the Penman’s is set on an all-black head, making it appear different from Jake’s, which is the outline of a smile on a white head with black sunglasses.
“Indeed, Mr. Blehm’s decision to omit eyes and other facial features on the Penman makes the figure susceptible to an interpretation that the Penman is not smiling at all. One interpretation is that the white space on the head is not a smile, but is the Penman’s face with no features. The black above the half-moon shape can be perceived as hair swooping down over the Penman’s forehead. Thus, the Penman’s lack of facial features make it susceptible to different interpretations. The Jake figure is not susceptible to similar confusion.”
There are important differences in many of the corresponding cartoons, the court found.
“For example, many of the Jake images wear clothes when the Penmen do not,” Matheson wrote. “Others are drawn in a more three-dimensional manner than the Penmen. Some Jake and Penmen images do not even share the half-moon smile directed at the viewer. Many Jake images have substantial use of color.
“In sum, these images are so dissimilar as to protectable expression that the substantial similarity question need not go to a jury.”
Chief Judge Mary Beck Briscoe and Judge Neil Gorsuch joined in the opinion.
Gary Blehm was represented by Conor Farley with Holland & Hart.
Natalie Hanlon-Leh, of Faegre Baker Daniels, represented the Jacobs brothers, The Life Is Good Co. fka Life Is Good Inc., Life Is Good Wholesale Inc., and Life Is Good Retail Inc.
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