Food for thought: Court rules banana costume is copyrightable

Description

Abstract: In 2017, the U.S. Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., established a two-part test for analyzing which elements of a piece of clothing are design elements protectable by copyright and which are nonprotectable functional elements. This article reviews a recent case from the U.S. Court of Appeals for the Third Circuit that has applied the fruit of the high court’s labors in that case for the first time in its jurisdiction. A brief sidebar covers the application of the merger and “scènes à faire” doctrines to the case. Silvertop Associates Inc. v. Kangaroo Mfg. Inc., No. 18-2266, Aug. 1, 2019, 3d Cir., Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).