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Rasta Imposta, a small costume company, sued Kmart for copyright infringement after the retail store discontinued carrying the company’s banana costume. Instead, Kmart switched to another company and Rasta Imposta alleges the current Kmart costume has the same shape, lines, and cutouts of its banana costume. Moreover, the complaint continues, even the model displaying the costume is adorning it in a similar fashion with black pants and dress shoes. Rasta Imposta’s argument relies on a recent Supreme Court ruling on the copyright status of cheerleading uniforms. In that case, the Court held the uniform was eligible for copyright protection to the extent the design elements could be identified separately from the utilitarian aspects of the article. Normally, copyright law granted only limited protection to the design of useful articles such as clothing. Functional aspects of an item, such as holes in the costume for the neck and arms, are not eligible for copyright protection. In contrast, traditional creative works such as books, films, or paintings were granted broader protection. Since Rasta Imposta did not invent how a banana looks in nature nor can it claim protection for the costume’s functional aspects, the question will be whether its banana design adds enough originality over a generic banana costume to justify copyright protection. #omnilegalgroup #copyright #Kmart