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Feb 21 2013

Fed. Appeals Court Rules: “Life is Good” May Have Copied Penmen Designs But it Did Not Infringe

Life is indeed good for the Jacobs brothers who started the Boston MA based apparel company “Life is Good.” Not only did they turn their T-Shirt company into a $100 Million a year business, but this past December, the Tenth Circuit, a federal appeals court, dismissed a copyright infringement lawsuit brought against the company over the use of their stick figure character, whom they call “Jake.” The lawsuit was brought by graphic artist Gary Blehm who in the 1980s created stick figure characters called Penmen. He had a pretty good run himself, selling , posters, a nationally syndicated comic strip and other merchandise. He brought his lawsuit alleging that the Jake figure infringed on his copyrighted Penmen figures. The Jacobs brothers started their company in 1994 and claimed to have never seen the Penmen characters until they were served with the lawsuit.

While the court below and the Tenth Circuit found that the brothers could have had an opportunity to see the Penmen characters and copy them, it also found that the copying of the figures were not similar enough to be called infringement because the parts that were similar (or copied) were the mere idea that Penmen’s creator came up with, rather than the particular expression of that idea. In the Tenth Circuit’s decision, the court first cited the Copyright Act’s Section 102 (B) which states: “In no case does copyright protection . . . extend to any idea . . . [or] concept . . . regardless of the form in which it is described, explained, illustrated, or embodied in such work.” The idea of stick figures to represent humans goes back to cave drawings from the beginning of human consciousness. But Blehm argued that the brothers had copied his expression of the stick figure idea because both of the characters have “round heads, disproportionately large half-moon smiles, four fingers, large feet, disproportionately long legs, and a message of unbridled optimism.” So the court went to the task of determining whether the characters were “substantially similar” while reminding the parties that “in looking at . . . two works of art to determine whether they are substantially similar, focus must be on the
similarity of the expression of an idea or fact, not on the similarity of the facts, ideas or concepts themselves.” The court also acknowledged that “the idea/expression distinction is the most complex part of the substantial similarity inquiry” and must be done on a case by case basis as no definitive formula can be written; you simply have to look at the two pieces of art and compare.

Peace Sign Stick Figure So the court looked at the Peace Sign Penman on the left and Peace Sign Jake on the right and found that there were similarities. It also found that there were some protectable elements to the Penmen characters. Their heads were detached, they were all black with the large half-moon smiles all in white, no other facial features are shown, and there is a disproportionality between the size of the legs and the body, for example. The court noted that the Jake character also had a half moon smile but that it was sufficiently different to say that it did not infringe on the Penmen. The court noted that the because Penmen had no other facial features, the half moon smile may also appear to some people as the face of the Penman with the top part of the head being its hair. No such confusion could exist with the Jake character because of its visible eyes. The court therefore concluded that no reasonable juror (is that an oxymoron?) could say that Jake copied the protectable elements of the Penmen.

Frisbee Stick Figure The court then went on to analyze the Frisbee Penman and the Frisbee Jake. It noted that “the two figures’ poses are similar—suspended in the air with legs outstretched and
a hand descending to catch the disc—but we do not consider the pose in our analysis. Such a pose is common to this activity and is not protected expression. Again, the figures have large, half-moon smiles. And unlike the “peace sign” Jake, this Jake image has legs that are disproportionate to a truncated torso. The Penman’s legs also are long with respect to the torso, but not as disproportionate as Jake’s.” So once again, the court found that the pose itself and that a stick figure was drawn in that pose (with half moon smiles) was insufficiently original to be protected and that the Jake figure did not copy enough of the protectable elements of the design to be classified as infringement. The court was concerned that if it found that Jake infringed on Penmen, then Penmen would have a monopoly over all stick figure drawings using black lines. In concluding the court stated:

Copying alone is not infringement. The infringement determination depends on what is copied. Assuming 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.

This decision is stark reminder to artists and writers out there that not all copying is infringement. Copyright Law is always about finding a balance between infringement and inspiration; the law is not meant to stifle ideas that are put into expression after being inspired by an earlier idea. The court reminds artists that its about making their works of art sufficiently unique so as to render them protectable. If you rely on a generic expression of an idea, you may find that someone will come along and build a better mousetrap or draw a better Penman.

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