If you think copyright law in this country is governed by reason, an absolutely bananas federal court case should disabuse you of that notion.
Currently, costume manufacturer Rasta Imposta—inventors of the famed Rastafarian hat with sewn-in dreadlocks—is suing fellow costume maker Kangaroo Manufacturing, arguing that Kangaroo's banana suit costume is so similar to Rasta's that it amounts to a copyright violation.
"Kangaroo's conduct in copying Rasta Imposta's well-known Banana Design is likely to cause consumer confusion as to the source of the products offered by Kangaroo," writes the company in its lawsuit, arguing that should Kangaroo create "an inferior banana costume design, consumers are likely to incorrectly associate that product with Rasta Imposta."
Rasta first filed its lawsuit in October 2017, and the case has been winding its way through federal courts ever since.
Throughout, Kangaroo has argued that a banana costume is going to look like, well, a banana and that because bananas appear in nature, simple costume replicas of the fruit can't be copyrighted. "It was designed to look like a banana, and it looks like a banana," said a lawyer for Kangaroo in an April 2019 court hearing.
Back in May 2018, U.S. District Court Judge Noel Hillman rejected this argument, saying that while all bananas might look alike, all banana costumes need not.
"The shape and curvature can vary, as can the existence and color of tips to the banana. Bananas can also be designed to appear ripe, overripe, or unripe, ranging in color from yellow, to brown, to green. The shape can be long or more stout, relatively elongated or thin or more plump. The banana may be whole or partially peeled. There can also be the production of vertical lines and the texture and material can differ," wrote Hillman.
Kangaroo's lawyers appealed Hillman's ruling to the Court of Appeals for the 3rd Circuit, where the case now sits.
Rasta's lawsuit against Kangaroo over alleged infringement of its banana costume design is not its first. Since copyrighting the costume in 2010, the company has filed three other lawsuits alleging infringement of its banana design, including one in 2017 against retail giant K-Mart.
The fact that Rasta has had to resort to lawsuits so frequently to protect its copyright and that all three of its past lawsuits were settled quickly out of court suggests that there's something to Kangaroo's contention that one banana costume is much like another.
Libertarians are often split on whether the government should have strict protections for copyrights and other forms of intellectual property. There are good arguments on both sides.
Nevertheless, it's a slippery slope from agreeing that there should be some IP protections for people's commercial creations to ending up with two companies quibbling in federal court about how similar their man-sized banana suits can be.