The Costumes Are Bananas. So Is the Lawsuit Over Them.
Posted June 7, 2018 10:10 p.m. EDT
The issues that come before Judge Noel L. Hillman in federal court in Camden, New Jersey, involve the usual sober matters — allegations of Medicaid fraud or child pornography or overcrowding in jails. They inevitably lead to mountains of dense legal documents with stultifying terms like “collateral estoppel” and “implied warranty of merchantability.”
Then came something unexpected — a dispute about bananas, or more precisely, a lawsuit about costumes that look like bananas and the two companies that make them. One company maintained that the other was manufacturing look-alikes that had been copied from them.
Hillman could not help himself. He used terms like “bananafest” and “bananapalooza” at a hearing, after wondering “whether the Founding Fathers had banana costumes in mind” when they drafted the Constitution.
Later he played art critic, declaring that the costumes in question were “unlikely to end up in the Philadelphia Museum of Art.” He also weighed cheerleaders’ outfits, which had figured in a 2017 copyright case, against what he was weighing in the banana case — in legal terms. His conclusion: “It seems safe to posit that there is no universal view of what a banana costume is or what it should look like.”
It is hard to resist the temptation to call the judge’s 35-page opinion, issued on May 29, a split decision, because he ruled in favor of the company that brought the lawsuit, Rasta Imposta of Runnemede, New Jersey, on two issues, and in favor of the other company, Kangaroo Manufacturing, on one.
He issued a preliminary injunction barring Kangaroo Manufacturing from selling its banana costumes, declaring that Rasta Imposta had “a reasonable likelihood of success” on copyright infringement claims.
Still, he ordered Rasta Imposta to post a $100,000 bond as security, just in case Kangaroo Manufacturing ended up winning when the case went to trial. Kangaroo has since appealed the injunction.
Rasta Imposta’s website shows a bunch of banana-costume products: banana dresses, banana hoodies, “zombie banana” outfits and the “Chiquita Banana,” with the produce producer’s blue logo. It also makes costumes that look like avocados, man-eating sharks and giraffes, among others.
So perhaps the evidence presented in the case was to be expected. There were no crime-scene photos or hair or fiber samples. Instead, the lawyers hauled in four sets of costumes, two from Rasta Imposta and two from Kangaroo Manufacturing. Rasta Imposta’s lawyers also submitted photographs of more than 20 other banana costumes.
Hillman — who has been on the federal bench for 12 years and who, earlier in his career, was the chief prosecutor in the corruption investigation of a disgraced Republican lobbyist, Jack Abramoff — did not indicate whether he had tried on any of the costumes. Nor did he note whether he had gone to a supermarket to inspect a real banana, but he did not need to leave the courtroom to do that. A lawyer for the defendant, David Allen Schrader, brought one to a hearing in January.
“It’s a little overripe,” Schrader said, according to a transcript. “I’ve got some black spots on it, but it was the best I could do on short notice.”
At the judge’s mention of “bananafest” and “bananapalooza,” a lawyer for Rasta Imposta, Alexis K. Arena, did her best to keep the discussion sober and earnest.
“It is humorous, your honor,” she said, “but it is also very big business.”
“Excuse my attempt at levity,” the judge said, according to the transcript.
But even she acknowledged that the case was ripe for giggles. “We also crack jokes in my office, obviously,” she told the judge. The judge’s decision went into enough detail about costumes, down to the location of the cutouts for the wearer’s head and arms, to make someone reading it go — forgive us — bananas. He described “the soft, smooth, almost shiny look and feel of the chosen synthetic fabric” and “the bright shade of a golden yellow and uniform color that appears distinct from the more muted and inconsistent tones of a natural banana.”
Kangaroo’s lawyers had argued, in effect, that one banana is no different from the next, and for that reason, that Rasta Imposta’s costumes could not be protected by copyright.
But Hillman said that approach “would deny Andy Warhol copyright protection for his famous image of a ripe banana.” (That image, on the cover of the 1967 album “Velvet Underground & Nico,” was itself the subject of litigation in Manhattan several years ago. Former members of the band Velvet Underground sued the Andy Warhol Foundation amid reports that the foundation planned to license the image for iPhone and iPad accessories. The case was settled in 2013. The terms were not disclosed.)
In the banana case, Hillman concluded that the design was likely to be “eligible for copyright protection,” adding that “it appears to the court that almost every feature of Kangaroo Manufacturing’s design resembles Rasta Imposta’s.”
A lawyer for Kangaroo Manufacturing, Bruce Allen Schoenberg, did not return a call or respond to an email seeking comment.
The judge said in his ruling that another company started by Kangaroo’s president, Justin Ligeri, had sold Rasta Imposta costumes but that Kangaroo did not have a license to sell the banana costume. The ruling did not address emails Ligeri had sent to Robert Berman, the president of Rasta Imposta. Hillman summarized them at the hearing as “it sounds like, in salty language, I’m going to destroy you.”
Berman said that about a month before Halloween 2017, he learned that Kangaroo was selling a costume that looked a lot like the Rasta Imposta Banana Deluxe, a design his company had introduced more than 15 years earlier.
Kangaroo countered that “'there is nothing original about making a banana yellow or the ends of a banana black, as this is exactly how a ripe banana appears in nature,'” the judge wrote. But he said he had to “view the banana costume as a whole, as opposed to inspecting the individual components that come together to create the banana costume.”