Banana Lady Performance Not Copyrightable

by McDermott Will & Emery

Conrad v. AM Community Credit Union -

The U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s decision dismissing a copyright infringement claim and holding that the organizers of an event at which plaintiff performed a singing telegram dressed in a banana costume did not infringe or induce infringement of plaintiff’s asserted copyrights because immediately after her performance the organizers told the attendees that photographs of the performance may only be taken for personal use, as permitted by plaintiff.  Conrad v. AM Community Credit Union, Case No. 13-2899 (7th Cir., Apr. 14, 2014) (Posner, J.).

The plaintiff, Catherine Conrad (aka the Banana Lady), a singing telegram performer, was hired by the defendant to sing at a trade association event, dressed in a banana costume.  Conrad told the arrangers that the members of the audience were not allowed to take photographs or videos of her performance except for their personal use. The arrangers of the event in turn informed the attendees.  Photos and videos were taken and the Banana Lady filed suit, alleging infringement of her copyright in her performance.

After the district court dismissed the copyright infringement claim, ruling that Conrad had failed to state a claim, Conrad appealed.

The 7th Circuit affirmed the district court’s decision, concluding that among the deficiencies with Conrad’s infringement claim was that “the performance itself was not copyrighted or even copyrightable, not being fixed in any tangible medium of expression.”  Nevertheless, the court proceeded with its analysis stating that “photos and videos made by members of the audience could conceivably have been either reproduction of, or works derivative of the protectable elements of Conrad’s performance, such as the costume.”  If so, Conrad would have the exclusive right to create or license reproductions of and derivative works from works that she had validly copyrighted, 17 U.S.C. 106(1), (2).  In addition, the Copyright act forbids unauthorized recording of a musical performance, 17 U.S.C. 1101(a), and unauthorized display of copyrighted musical or choreographic work, § 106(5).  However, Conrad did not allege that any of those rights had been violated.  Also Conrad sued the organizers, not the individual attendees.  The organizers could only be liable for inducing infringement, i.e., if they had encouraged the attendees to infringe Conrad’s copyrights.  But the organizers had done the opposite by informing attendees not to use videos and photographs they took for anything other than personal use.

The court noted however that although Conrad claimed to have a registered copyright in her banana suit, they doubted that a banana suit could be copyrighted as they were “surprised to discover” that banana suits are a common consumer product.

The court also urged the district court to stop Conrad’s abuses.  Conrad’s “abuse of the legal process by incessant filing of frivolous lawsuits” should be stopped, and the court suggested that the lower courts “consider enjoining her from filing further suits until she pays her litigation debts.”



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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