UnIP (UnIntellectual Property): Copyright for Depictions of Everyday Activities, Common Anatomical Features, or Natural Poses

The United States District Court for the District of Colorado granted summary judgment in favor of defendants the Life Is good Company, and its founding brothers, after the creator of series of copyrighted posters featuring cartoon characters called “Penmen” brought a copyright infringement action.  Plaintiff had created hundreds of “Penmen” drawings and registered them with the United States Copyright Office in the early 1990s.  Around the same time, defendants created their most well-known figure, “Jake,” and began selling t-shirts that included Jake and the phrase “Life is Good.”
The Court of Appeals for the Tenth Circuit reviewed the grant of summary judgment and upheld it.  In doing so, the Court held the following:
1. Plaintiff has “no copyright over the idea of a cartoon figure holding a birthday cake, catching a Frisbee, skateboarding, or engaging in various other everyday activities.”
2. “Nor can the Jake images infringe on the Penmen because the figures share the idea of using common anatomical features such as arms, legs, faces, and fingers, which are not protectable elements.”
3. Plaintiff’s “copyright also does not protect Penmen poses that are attributable to an associated activity, such as reclining while taking a bath or lounging in an inner tube. … These everyday activities, common anatomical features, and natural poses are ideas that belong to the public domain; Mr. Blehm does not own these elements.”
Having dissected the unprotectable components, guided by the idea/expression dichotomy, the Court ultimately held “that no reasonable juror could determine that the Jake figure is substantially similar to the protected, expressive choices Mr. Blehm used for the Penman figure.”  As a result, there could be no copyright infringement.

This looks like a close case to me, and one that probably could have just as easily not been decided on summary judgment.  A cursory review of the Penmen-Jake Chart that accompanied this lawsuit, which showed Plaintiff’s image side by side with the allegedly infringing Defendants’ image, would lead many to believe infringement occurred.  However, as the Court did, a thorough analysis and deep factual dissection ultimately led to the opposite result.  My belief is that the evidence regarding independent creation helped lead to this result.  Had there been evidence that Defendants’ knew of Plaintiff or had purchased a poster showing Penmen, this case may have ended very differently.  For now, life continues to be good for Jake and friends.  Not so much for Penmen.

Blehm v. Jacobs, No. 11-1479, 2012 WL 6700437 (10th Cir. Dec. 27, 2012).


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