Clothing and accessories maker Life is good Inc. got a happy ending to 2012 following a U.S. Court of Appeals for the Tenth Circuit ruling that a cartoon on its products doesn’t infringe a poster maker’s copyrights.
The unanimous panel ruling December 27 in Blehm v. Jacobs affirmed U.S. District Judge Richard Matsch’s September 2011 summary judgment for the company.
The dispute centered over the copyrighted posters created by plaintiff Gary Blehm featuring cartoon characters called “Penmen.” The Penmen are stick figures with “round heads, disproportionately large half-moon smiles, four fingers, large feet, disproportionately long legs, and a message of unbridled optimism.”
Blehm registered copyrights for six posters featuring Penmen between 1989 and 1993. He sold his posters through a national chain from 1990 to 2004. In the early 1990s, he expanded into other stores in the Boston area, where Life is good and creators Albert and John Jacobs, who are brothers, is based. Blehm also sold Penmen t-shirts, a book and a comic strip.
The Jacobs brothers began their business in 1989 with t-shirts boasting positive, optimistic themes. In 1994, they developed their flagship character, called “Jake.” It began as a drawing of a red face, wide smile, sunglasses, and a beret. They began selling T-shirts featuring the face and eventually added a torso, arms, and feet to the drawing.
In December 2009, Blehm sued the Jacobs brothers and Life is good. His claims were later amended to one count of copyright infringement and one count of contributory infringement. Judge Matsch held that there was no infringement because the copyrighted and accused works are not substantially similar.
Matsch also concluded that “the remaining original expression [of the Penmen] that is subject to protection is thin.” He held that the images are different “with respect to color, the orientation of the body, the relation of the body to the head, expression, clothing and other features,” and that any similarities “flow from considerations external to the Plaintiff’s creativity, such as common themes and natural poses.”
The Tenth Circuit judges largely agreed. Judge Scott Matheson Jr. wrote that the district court correctly held that Blehm has no copyright over the idea of a cartoon figure engaging in activities like holding a birthday cake or skateboarding or having anatomical features like arms and legs. Matheson was joined by Chief Judge Mary Beck Briscoe and Judge Neil Gorsuch.
“These everyday activities, common anatomical features, and natural poses are ideas that belong to the public domain; Mr. Blehm does not own these elements,” Matheson wrote.
Matheson then noted that Blehm’s drawings are more than simple stick figures and that “each Penman follows a seemingly uniform standard to achieve a unique expression.”
Matheson went on to analyze dissimilarities in the two parties’ drawings, including of the characters’ heads, smiles, body proportions, fingers and the Penman’s lack of facial features.
He also noted that some of the images of the Jake character wear clothes and are drawn in a more three-dimensional manner than the Penmen.
Even if “Life is Good copied Penmen images when it produced Jake images, our substantial similarity analysis shows it copied ideas rather than expression, which would make Life is Good a copier but not an infringer under copyright law,” Matheson wrote.
“Life is Good is very pleased. We were glad that the court got into the issues,” said Natalie Hanlon-Leh, a Denver intellectual property partner at Faegre Baker Daniels, who argued for Life is good before the Tenth Circuit.
Hanlon-Leh added that the discovery clearly shows that her clients had never heard of Blehm until he sued them three years ago.
Neither Blehm nor his lawyer Conor Farley, of counsel at Denver’s Holland & Hart, responded to requests for comment.
Sheri Qualters can be contacted at email@example.com.