Halloween is all fun and games until a lawsuit is filed. A costume company sued Kmart for copyright infringement for stealing the look of a banana costume. Really. And that suit has gone all the way up to a Court of Appeals upholding the injunction against the rotten banana impersonator.

Copyright protection exists for anything that can be recorded in a medium; that medium can be film, canvas, or cheap felt used for Kmart Halloween costumes. In order to invoke copyright protection, the bar for creativity is fairly low but generic things cannot be protected. For example, if you draw an apple, other people can draw an apple without being accused of infringement. Speaking of fruit, on to this case.

Rasta Imposta (can't make this up) is the designer of Halloween costumes and for several years has been supplying its wares to Kmart including the "distinctive banana costume design." Rasta claims in 2001 it was the first company to come up with this distinctive banana costume design. Kmart and Rasta could not come to a deal and Kmart went elsewhere to find its banana costumes. That's when this lawsuit started over the two costumes that can be seen below. Kmart quickly settled with Rasta but a lawsuit against another supplier, Kangaroo went forward.

Image of Banana Costume Lawsuit


Rasta claims that the two costumes are substantially similar and Kangaroo, in essence, is selling knock-off version of its costume. For the alleged acts of infringement, Rasta seeks damages in an unspecified amount, its attorneys' fees, and an injunction preventing Kangaroo from selling the impersonator.  Kangaroo argued that the costume was not copyrightable but the court felt otherwise. The matter was then sent to the appeals court (man, this lawsuit is costing a lot of bananas) where the Court held that Kangaroo copied non-utilitarian elements of the design including curves lines and black tips.

The question for the judges was whether Rasta's costume is distinctively original and creative to be afforded copyright protection and the answer was a "you bet you banana".