Everybody loves banana costumes but not when they are allegedly infringing a competitor’s intellectual property. Recently, Rasta Imposta, a designer of banana Halloween costumes, sued Kmart for copyright infringement and trade-dress infringement of their banana costume. From 2008-2016, Kmart sold Rasta Imposta banana costumes but the two corporations failed to sign an agreement for Halloween 2017. When a similarly styled banana costume started appearing in Kmart stores, Rasta Imposta was not pleased and subsequently sued.
While a seemingly humorous case, Rasta Imposta’s case touches upon a larger issue. This issue is the relationship between copyright protection and clothing. The United States does not protect “useful articles”, so clothing is generally exempt from copyright protection. However, there are exceptions to this policy; one such exception is designs on a “useful article”. For example, copyright law may extend protection to a fanciful pattern on T-shirt. Additionally if an entity has both artistic and utilitarian functions, copyright law will only protect the artistic functions.
Particularly interesting, this lawsuit occurred after the pivotal 2017 case of Star Athletica, LLC v Varsity Brands, Inc. In that case, the Supreme Court of the United States argued copyright law applied to designs on a cheerleader outfit. Copyright law protects a design that is “separable” from the utilitarian article and if that “separable” article is “protectable work”.
It will be interesting to see how the courts apply this novel precedent to a banana costume. Will they distinguish or not distinguish this lawsuit? In fitting with the season, will the plaintiff get the treat of a successful lawsuit?