Fleischer Studios, Inc. v. A.V.E.L.A., Inc.

Opinion by Judge WALLACE; Dissent by Judge GRABER.

OPINION

This appeal stems from the district court’s summary judgment dismissing Fleischer Studios, Inc.’s (Fleischer) copyright and trademark infringement action. The district court ruled that Fleischer held neither a valid copyright nor a valid trademark in the Betty Boop cartoon character and thus lacked standing to sue. Fleischer appeals. The district court had jurisdiction pursuant to 28 U.S.C. § 1338 (a), and our jurisdiction arises under 28 U.S.C. § 1291 . We affirm.

I.

Betty Boop “combined in appearance the childish with the sophisticated — a large round baby face with big eyes and a nose like a button, framed in a somewhat careful coiffure, with a very small body....” Fleischer Studios v. Ralph A. Freundlich, Inc., 5 F.Supp. 808, 809 (S.D.N.Y.1934). Betty Boop was the creation of Max Fleischer, then head of Fleischer Studios, Inc. (Original Fleischer). Beginning in 1930, Original Fleischer developed a number of cartoon films featuring Betty Boop. For a time, Original Fleischer licensed the Betty Boop image for use in toys, dolls, and other merchandise. Approximately ten years after creating her, Original Fleischer…

dissenting:

I respectfully dissent.

The beginning and the ending of this story are undisputed. Max Fleischer created the lovable character Betty Boop in the 1930s. In 1941, he sold to Paramount Pictures the copyright to certain cartoons and to the character Betty Boop herself. Max Fleischer died in 1972.

After Fleischer’s death, some of his descendants incorporated Fleischer Studios, which is Plaintiff here. Part of Plaintiffs plan was to bring back into circulation the character Betty Boop. Carrying out that plan, Plaintiff purchased the rights to Betty Boop from various entities in the 1980s and 1990s. When Defendants began selling Betty Boop merchandise, Plaintiff brought this action alleging, among other things, copyright infringement.

Plaintiff must establish the chain of title of the copyright to the character Betty Boop. It is undisputed that Paramount owned the copyright as of 1941. The dispute focuses on the chain of title between Paramount and Plaintiff. In the district court, Plaintiff argued, primarily, that Paramount sold the copyright in 1955 to UM & M TV Corporation, which eventually sold it to Plaintiff. Plaintiff argued, alternatively, that even if Paramount…