Entertainment Research Group, Inc. v. Genesis Creative Group, Inc.

Entertainment Research Group, Inc. (“ERG”) appeals from two separate orders by the district court granting partial summary judgment in favor of defendants Genesis Creative Group, Inc. (“Genesis”) and Aerostar International, Inc. (“Aerostar”) and from a third order awarding attorney’s fees to defendant Genesis. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 17 U.S.C. § 505 . We affirm the district court’s orders granting partial summary judgment, but we vacate and remand the award of attorney’s fees.

BACKGROUND

ERG designs and manufactures three-dimensional inflatable costumes that are used in publicity events, such as shopping mall openings. The costumes are approximately eight feet tall and are worn by a person who remains inside the costume. Various companies purchase and use these costumes to promote their products. The costumes are based upon these companies’ cartoon characters.

ERG has manufactured and sold these walk-around inflatable costumes for the past sixteen years. Over this time, ERG has developed techniques and designs that have resulted in high-quality, attractive, durable and comfortable inflatable costumes. Up until the Spring of 1991, ERG was…