This Costume is Bananas: Third Circuit Judge Thomas Hardiman wrestles
with validity of copyright for full-body banana costumes.
interlocutory appeal in copyright infringement litigation between Kangaroo
Manufacturing and Rasta Imposta raises a question of first impression – whether
a banana costume’s “costume’s non-utilitarian, sculptural features” are
Manufacturing sells a banana costume that it concedes is “substantially
similar” to the banana costume sold by Rasta Imposta, but “contends the banana
is unoriginal because its designers based the design on a natural banana,”
arguing that “depictions of natural objects in their natural condition can
never be copyrighted.”
The Third Circuit
panel agreed that “if copyrighting a design feature would effectively
monopolize an underlying idea” then the so-called merger doctrine “exists to
deny that protection,” and noted that merger “is most applicable where the idea
and the expression are of items found in nature, or are found commonly in
panel concluded that Rasta’s banana costume would not effectively monopolize
the underlying idea “because there are many other ways to make a costume resemble
Here too, copyrighting the banana costume’s non- utilitarian features in combination would not threaten such monopolization. Kangaroo points to no specific feature that necessarily results from the costume’s subject matter (a banana). 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).
note: line-drawing in this space is fraught with peril! Also recently in the news: It looks like a duck…but not enough like
the other duck.
And finally, note
that intellectual property litigation is not just banana costumes and
inflatable ducks. Even in such seemingly
frivolous context, the line-drawing is a challenging task. Hence, NJCJI’s continued opposition to the “patent troll” legislation, which would add state Consumer Fraud Act
remedies to the mix.
Prime beach reading has been posted on SSRN.
The potential for
self-dealing for attorneys representing plaintiff classes is a persistent
problem. NJCJI has repeatedly pointed
out that the class action model is a deeply flawed mechanism for delivering
relief to class members, with attorneys more often creating the illusion of
relief for class members while delivering significant fees to themselves.
The problem is
especially pronounced in securities class action litigation, where the
litigation effectively works to return shareholders’ own dollars back to
themselves, minus the attorney fees and other transaction costs. Attorneys have much stronger incentive to
generate fees than does representative plaintiff to monitor fees, though the Rules
of Civil Procedure attempt to address this flawed incentive structure by
charging judge to monitor and approve fees.
This recent study
examines to what extent attorneys have nevertheless been able to game the
judicial scrutiny to secure significant fees without regard to incremental
value brought to the litigation. Sadly,
the authors conclude that:
plaintiffs’ attorneys are receiving windfall fee awards in mega-settlement cases at shareholders’ expense. Although there typically is strong evidence of corporate wrongdoing in cases leading to the mega-settlements, this evidence often comes to light prior to the involvement of plaintiffs’ attorneys through restatements, SEC and other government investigations, and/or the termination of top officers. … Knowing that a large settlement is likely, plaintiffs’ attorneys may anticipate a need to justify a large fee award—leading them to “make work.”
Dovetailing with current
trends at the state level, Senate Democrats have recently introduced
legislation that would reform arbitration. The bill, dubbed the “FAIR” Act,
pushed primarily by Senator Richard Blumenthal of Connecticut, would seek to
eliminate arbitration clauses in employment and consumer cases.
On April 2nd,
the Senate Judiciary Committee, still controlled by Senate Republicans, held
testimony from a wide-ranging panel of attorneys expressing divergent views on
America’s current arbitration system with a focus on the costs and benefits it
presents to businesses and consumers. Some panelists argued that arbitration in
employment and consumer contracts is utilized primarily by companies and
employers to avoid costly and time-consuming litigation. While Alan Kaplinsky
and Victor Schwartz had the opportunity to explain to the committee how
arbitration clauses in such contracts helps to contain legal costs for all
who co-chairs the public policy group for Shook, Hardy & Bacon, presented
arbitration as an efficient means of resolving disputes. In his testimony, Schwartz
explained that a voluntary contract is unfair by reason of it including a “take
it or leave it” provision ignores the simple fact that potential employees and
consumers can just “leave it”. In addition, the forum setting of arbitration
proceedings affords individuals a degree of privacy often not granted by the
courts who may otherwise wish to avoid the potential harm a public hearing
would have on themselves or their loved ones. After all, confidentiality is not
a benefit that only companies can derive a benefit from.
myth that the high “win” rate of businesses at arbitration proceedings shows
that they are biased against claimants, Mr. Schwartz explained that parties often
settle cases for reasons independent of the claim’s actual merits, such as
nuisance value, before even reaching the formal arbitration proceedings. And as
a result, cases that reach formal arbitration are often relatively low-merit
claims. Legislation such as the misleadingly named “FAIR” Act would actually shift
increased litigation costs onto all consumers and employees and deprive everyone
of a swift method of resolving contractual disputes.
by: Anthony Zelich – NJCJI Law Clerk
Orientale vs. Jennnings
The Supreme Court heard oral argument in Orientale v.
Jennings on April 24, 2019 – a case that could lead to new rules regarding
remittitur and additur. The New Jersey Civil Justice Institute (as well
as several other organizations) submitted an amicus curiae brief addressing
specific issues raised by the Court.
One of the Court’s main concerns is the standard the trial court should apply in setting the damages when granting a remittitur or additur – should the damages amount be the highest amount reasonably supported by the record (for remittitur), the lowest amount reasonably supported by the record (for additur); or a reasonable amount supported by the record in both contexts? The parties and the various amici presented differing views on these questions. NJCJI argued that the goal should be to arrive at a fair and reasonable award of damages for both remittitur and additur. It highlighted that the alternative approach of awarding the “highest” or “lowest” amount, purportedly to comport with the intention of the jurors, is flawed; it is anomalous to attribute a rational, permissible motive to a jury’s damages award that, by definition, is “one no rational jury could have returned, . . . so wide of the mark and pervaded by a sense of wrongness that it shocks the judicial conscience.” Cuevas v. Wentworth Group, 226 N.J. 480, 500 (2016). Questioning from some of the Justices indicated they were sensitive to this concern.
Ultimately, the Court appears most concerned with developing standards that will lead to the fairest results for the litigants, while at the same time advancing remittitur/additur’s salutary aims of avoiding the time, expense and uncertainty of retrials in cases where the verdict was patently wrong.
Contributed by David Swerdlow, Partner at Windels Marx Lane & Mittendorf, LLP in New Brunswick, NJ. NJCJI wants to express our thanks for your help on the case.