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Can Banana Costumes Be Copyrighted?

By Christopher Coble, Esq. on August 08, 2019

All of us still harbor a seething resentment towards our mother after she made us dress up in a banana costume for Halloween in fourth grade.

Okay, maybe only some of us do.

But for those of us still traumatized by those tragic events, the news of a years-long banana costume copyright battle perhaps finally coming to an end is welcome indeed.

Slippery Slope

If you weren't already aware, legendary costume brand Rasta Imposta has been fighting with Kmart and Kangaroo Manufacturing over the design of banana costumes for years. In fact, Kangaroo's founder, Justin Ligeri, also founded another company, Yagoozon, that used to buy and resell thousands of Rasta's banana costumes. After that business deal went bad, Kangaroo started selling its own costume and Rasta sued for copyright infringement.

And while many legal experts at the time didn't think something as ubiquitous as a banana in costume form could be copyrighted, a recent Supreme Court case handed legal victory to Rasta. The U.S. Third Circuit Court enjoined Kangaroo from making and selling a substantially similar banana costume, and not without a sense of humor. Noting that a lower court's injunction "is now ripe for review on appeal," the court concluded Rasta could likely "prove entitlement to protection for the veritable fruits of its intellectual labor."

More Than One Way to Skin a Banana

But that doesn't mean no one else can ever make a banana costume. Essential to the court's ruling was the fact Kangaroo didn't have to make their banana costume so similar to Rasta's:

Although a banana costume is likely to be yellow, it could be any shade of yellow -- or green or brown for that matter. Although a banana costume is likely to be curved, it need not be -- let alone in any particular manner. And although a banana costume is likely to have ends that resemble a natural banana's, those tips need not look like Rasta's black tips (in color, shape, or size). Again, the record includes over 20 examples of banana costumes that Rasta concedes would be non-infringing.

So, the legal lesson here is don't step on another company's banana costume copyright. And the moral lesson is don't let your mom dress you up like a banana on Halloween.

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