Article by Patent Attorney Stephen Bullock.
Silvertop Associates, Inc. went bananas when they realized another company slipped up by selling knock-off banana costumes that were eating profits. They made a split decision to serve the company with a suit.
In 2017, the U.S. Supreme Court laid out a two-part test for whether an artistic feature of a functional work is copyrightable. The test is:
(1) can the artistic feature of the article be perceived as a two- or three-dimensional work of art separate from the article? and
(2) would the feature qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the article?
In Silvertop Associates Inc. (d/b/a Rasta Imposta) v. Kangaroo Manufacturing Inc., the Third Circuit peeled back layers of the Supreme Court’s test to find the Plaintiff's banana outfit copyrightable.
If you have questions regarding protecting your intellectual property, contact Patent Attorney Stephen Bullock at 877-354-0809.