When Banana Costumes Are Everywhere

By Debby Winters

Did you see any Banana costumes during Halloween? Were they authentic Rasta Imposta costumes, or the allegedly copyright-infringing costumes sold at Kmart? “How can I tell?” you may ask.  Rasta says that K-mart stopped carrying the authentic Rasta banana costume and instead switched to another company’s allegedly copyright-infringing banana suit.  Rasta Imposta charges that the rival banana design infringes its copyright. The problem is that copyright law grants narrower protections to the design of “useful articles,” like clothing, than it does to traditional creative works like books or movies.  Therefore, it is unclear if Rasta Imposta’s banana costume design is creative enough to even qualify for copyright protection.  The situation is further complicated by a recent Supreme Court decision on the copyright status of cheerleading uniforms. The copyright was granted for the design below.  In that case, the high court ruled that the design of cheerleading uniforms was eligible for copyright protection, even though the uniform is obviously a “useful article.”

It will be interesting to see how this turns out.  Two previous similar lawsuits that Rasta has filed have settled, so we don’t know what decision those lawsuits might have brought and how they might have impacted the Banana costume case and copyright law.

One of Varsity's cheerleading uniforms

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