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3rd Circuit Hears Battle of the Banana Costumes

mans hand take bananas from shelf of store. healthy food. shopping concept
By William Vogeler, Esq. on April 10, 2019 8:59 AM

The law doesn't always have to be so serious. That's why the law created banana lawsuits.

In Silvertop Associates v. Kangaroo Manufacturing, the parties are bananas. Actually, it's about banana costumes, but you can't have a banana costume without copying a banana. That is the legal issue in the case: can you copyright a banana costume?

So yeah, it's a banana suit.

Banana Copyright

Notwithstanding a bunch of  banana jokes, the parties are serious about the case. The plaintiff, doing business as Rasta Imposta, says the defendant infringed on its banana costume in 2010. Kangaroo Manufacturing (you can't make this stuff up) says you can't copyright a banana costume. Bananas are found in nature, the defendant says, and nobody can own that design.

David Schrader, arguing before the U.S. Third Circuit Court of Appeals, is challenging a contrary ruling from the trial court. He said there's nothing special about Rasta's costume. It just looks like a yellow banana, he said. It's not original -- no unique brown spots or sunglasses -- that would be copyrightable. "So a costume of a terribly underripe or an overripe banana is copyrightable, but one of a normal off-the-shelf banana is not copyrightable?" asked U.S. Circuit Judge Thomas Hardiman.

Judge Michael Chagares couldn't help himself and interjected at one point: "I thought the counsel would wear the costumes."

Simple Fruits

Alexis Arena, fighting for Rasta's claim, said there are many ways to conceive of a design. But the Kangaroo's banana is just like theirs, she said."The shape has to be a banana, otherwise it's not a banana costume," Hardiman responded.

Judge Noel Hillman had called the case a "banafest" and a "banapalooza" in the trial court. The New York Times said he issued a "split decision," finding for Rasta on two claims and for Kangaroo on another.

It's a head-scratcher for sure, but thank goodness for simple fruits. The case has appeal.

But orange you glad we didn't say banana peel?

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