Caseflicks

Court of Appeals for the Tenth Circuit • 2012

Blehm v. Jacobs

702 F.3d 1193 | 2012 U.S. App. LEXIS 26462

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case holds that copyright protects an artist’s particular visual expression, not the general idea of smiling cartoon figures performing everyday activities; similarities in those unprotected ideas did not make Jake an infringing copy of the Penmen.

Background

Gary Blehm created and registered six “Penmen” posters between 1989 and 1993. Each poster contained numerous black-and-white cartoon figures arranged in rows, often performing ordinary activities. Blehm described the Penmen as having distinctive features, including round heads, prominent half-moon smiles, long limbs, four fingers, large feet, and particular drawing conventions involving proportion, perspective, and negative space. He later expanded the Penmen line into shirts, a comic strip, and a book.

Albert and John Jacobs began selling upbeat T-shirts around Boston in 1989. In 1994, John Jacobs drew the early version of “Jake,” a smiling cartoon character later used by their company, Life is Good. Jake appeared on shirts engaged in activities such as biking, hiking, golfing, and playing sports. Blehm alleged that numerous Jake images copied individual Penmen from his posters.

Blehm sued the Jacobs brothers and Life is Good for copyright infringement and contributory infringement. The district court found factual disputes over independent creation and access to Blehm’s work, but granted Life is Good summary judgment because the Jake images were not substantially similar to the protectable elements of the Penmen. Blehm appealed.

Issues

Issue #1

Whether the Penmen posters contained protectable expression beyond unprotected ideas, common anatomy, everyday activities, and natural poses.

Holding

Yes. The Penmen contained some protectable original expression, although Blehm could not claim exclusive rights over the general ideas embodied in the figures.

Reasoning

Copyright protects an author’s original expression, not ideas, concepts, or features that belong to the public domain. Thus, Blehm could not monopolize the ideas of cartoon people, figures with arms and legs, large smiles, or figures performing familiar activities such as skateboarding, catching a Frisbee, holding a birthday cake, or making a peace sign.

The court also excluded poses that naturally follow from an activity. A figure reclining in a bath, lounging in an inner tube, or assuming a pose associated with catching a Frisbee reflects an unprotected idea or functional depiction of the activity, rather than Blehm’s exclusive expression of it.

Still, the court rejected any suggestion that the Penmen were merely unprotectable stick figures. Blehm made particular stylistic choices: black-filled heads with white half-moon shapes, the omission of ordinary facial features, detached hovering heads, relatively short torsos, long thin limbs, four fingers, unusually large feet, and a consistent visual style governed by his own drawing rules. Those choices supplied the minimal creativity needed for copyright protection.

Issue #2

Whether the accused Jake images were substantially similar to the protectable expression in Blehm’s Penmen.

Holding

No. The Jake images were so dissimilar from the Penmen’s protectable expression that no reasonable jury could find actionable substantial similarity.

Reasoning

The court applied the ordinary-observer inquiry after filtering out unprotected material: whether an ordinary reasonable person would conclude that the defendant took protected expression of substance and value. Summary judgment is proper when the protected portions of the works are so dissimilar that no reasonable jury could find substantial similarity.

The court agreed that the district court should not have treated the comparison between an entire poster containing hundreds of Penmen and a shirt bearing one Jake image as dispositive. Copying an individual portion of a larger copyrighted work can be actionable if that portion contains protected expression of substance and value. The proper comparison was therefore between the challenged individual Penmen and the corresponding Jake images.

In the peace-sign comparison, both figures shared general features such as a smiling cartoon face, black-line body, four fingers, and outward-pointing feet. But those commonalities either reflected unprotected ideas or differed materially in expression. Jake had a large oval white head attached to the body, sunglasses, a beret, a colored background, and more proportionate limbs; the Penman had a detached black head, no eyes or headwear, a different body structure, distinct feet, and a unique use of white space in the hand.

The figures’ crescent-shaped smiles did not establish substantial similarity. A crescent smile is itself an unprotected idea, and the particular renderings differed: the Penman’s white shape appeared against an all-black head with rounded ends and no facial details, while Jake’s smile appeared on a white head with sunglasses, sharper angles, and markedly different proportions.

The Frisbee images likewise shared only the unprotected idea and ordinary pose of catching a Frisbee between one’s legs. Their protected expressive features differed in head design, body proportions, limb shape, arm placement, number of fingers, feet, and use of color. The court found the remaining challenged pairings even more dissimilar in many instances, particularly because Jake often wore clothes, appeared more three-dimensional, or used substantial color.

The court emphasized that copyright does not prevent others from drawing broadly similar cheerful cartoon figures engaged in similar activities. Even assuming Life is Good had copied from the Penmen, it copied only unprotected ideas rather than Blehm’s particular expression. Factual copying alone is not actionable infringement.