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ARTICLE · 13 AUGUST 2019

Yes, That Banana Costume Is Copyrightable

Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
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Frankfurt Kurnit Klein & Selz PC

Frankfurt Kurnit Klein & Selz PC

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Those sculptural features include the banana's combination of colors, lines, shape, and length.

United StatesIntellectual Property

The question that has undoubtedly been on the mind of every designer -- is a banana costume copyrightable? -- has finally been answered in the affirmative.  In Silvertop Associates Inc. (d/b/a Rasta Imposta) v. Kangaroo Manufacturing Inc., the Third Circuit applied the Supreme Court's 2017 Star Athletica decision for the first time (to a banana costume, no less), finding that the "costume's non-utilitarian, sculptural features are copyrightable."

When determining the copyrightability of artistic features of functional works, such as clothing or furniture designs (known in copyright-speak as "useful articles"), Star Athletica poses a two-question analysis: (1) can the artistic feature of the useful article's design "be perceived as a two- or three-dimensional work of art separate from the useful article? and (2) would the feature "qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the

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This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

Originally published by the New York Legal Ethics Reporter

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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