Betty Boop - An Intersection of Copyright and Trademark Law

Posted by Andrew Pontious

Betty Boop recently stepped out of the cartoon reels and into a federal courtroom to resolve a question regarding the intersection of copyright law and trademark law. No, she did not testify.

Max Fleischer created Betty Boop in 1930 and sold the rights to her character to Paramount Pictures in 1942. Heirs of Max Fleischer, who died in 1972, formed Fleischer Studios in the 1970’s to reacquire those rights. Max Fleischer produced some 90 Betty Boop short films between 1932 and 1939. Although her early sexuality was softened in later films, Betty Boop remains a flirtatious cartoon icon today.

In February 2011, U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Central District of California’s decision that the Fleischer’s heirs held neither a valid copyright nor a valid trademark in the Betty Boop cartoon character and thus lacked standing to sue for infringement. In that case, heirs of the creator of Betty Boop had sought to affirm their exclusive rights to the Betty Boop character under both trademark and copyright law in an infringement suit against AVELA, Inc., which licensed Betty Boop products based on its copyrighted restoration of vintage posters featuring the character. The heirs were rebuffed by the Ninth Circuit on both theories. After rejecting the heirs’ copyright infringement claims due to a clouded chain of title, the Ninth Circuit also denied their trademark infringement claims finding that Betty Boop’s image on AVELA products was a function of the products themselves and not used as a trademark. In essence, the Court found that consumers weren't concerned with who was selling Betty Boop merchandise, consumers just want Betty Boop products. In a preemption of copyright law over trademark law, the Court reaffirmed that trademark law could not be used to circumvent the Copyright Act and create perpetual rights to creative works such as the Betty Boop character. Doing so would prevent such creative works from ever entering the public domain contrary to applicable copyright law.

In March 2011, several copyright and brand owners and other interested parties, including INTA, filed amicus briefs supporting the Fleischer heirs’ request that the Ninth Circuit revisit the ruling by either panel rehearing or rehearing en banc. The amici argued that the Court’s ruling unwisely expanded the scope of the “aesthetic functionality” doctrine and threatens to subvert existing law in the Ninth Circuit and established merchandising practices in the entertainment industry. According to INTA,"[i]f the majority's opinion stands uncorrected, it will have far-reaching consequences for brand owners and consumers alike, undermining settled precedent within this circuit, upsetting the balance between trademark and copyright law, creating conflict with other circuits, and contributing to confusion."

No ruling on the petition for rehearing has been issued yet.