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.

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 have 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.
Image of Banana Costume Lawsuit

Rasta claims that the two costumes are substantially similar and that Kmart, in essence, is selling knock-off version of its costume. For the alleged acts of infringement, Rasta seeks damages in an unspecified amount and its attorneys’ fees.

Sure, the costume do look a like but isn’t that what every single banana costume in the world looks like? If you google banana costume, numerous other costumes, from different companies, appear and they all basically look the same, like a banana. The past history between Kmart and Rasta are factors to be looked at. In essence, Rasta claims since Kmart couldn’t make a deal with Rasta it found someone else to make imitation suits. So the question for the judge or jury will be whether Rasta’s costume is distinctively original and creative to be afforded copyright protection. We may have to wait a few Halloweens before this matter is decided unless a settlement can be reacher sooner.