CONSOR Asks Some Tough Questions About A Functional Betty Boop – What Does A Recent Court Decision Mean to Licensing?
The image of Betty Boop conjures up a sense of nostalgia. Created by Max Fleischer in the 1930s, the Betty Boop character has a baby face with big eyes, but carries herself as both innocent and seductive. We’re familiar with seeing the image on all sorts of products–clothing, purses, lunch boxes, jewelry—pretty much any object you can think of, her image has graced it.
Soon, not only will her public domain images be available to manufacturers, it seems any image of her can be used, according to a recent decision by the U.S. Court of Appeals for the Ninth Circuit (Fleischer Studios, Inc. v. A.V.E.L.A. Inc. et al., No. 09-56317, 9th Cir. Feb. 23, 2011). The Ninth Circuit’s majority concluded that since Betty Boop herself is what consumers want, it makes her the “functional aesthetic component of the product.”
What does that mean?
Apparently, since the Betty Boop image “was a prominent feature” of the products “so as to be visible to others when worn,” it is considered a functional part of those items and not trademark protected. Simply put, people want Betty Boop. This makes any product her image appears on desirable. We can see why consumers are loyal to Betty Boop; they are probably yearning for simpler times gone by.
The decision, if not reversed or remanded on further appeal, will have many consequences for those in the licensing sector. Trademark and copyright owners will have to be extra diligent in making sure their intellectual property rights are all updated before pursuing any alleged unauthorized use. Plus it will open up the floodgates for counterfeit products.
What about all the other characters, images or brands that consumers desire and pledge their allegiance to? Isn’t that what brand loyalty is all about? Think about the Playboy Bunny, the USC Trojan, Coke or Pepsi. Whatever the public considers to be their reason to collect these products in the first place–whether it be a fantasy desire, college affiliation, or taste preference–does this mean manufacturers can just stick on the logo without the consent of the artist or brand owner and not face any sort of consequence?
The court’s decision is definitely a hot topic to consider in deciding licensing strategies and the future ramifications for licensing programs. It will be interesting to see what additional ongoing court proceedings will decide.
Poor Betty. It appears she’s just getting used.