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Blehm v. Jacobs

Court of Appeals for the Tenth Circuit
702 F.3d 1193, 2012 U.S. App. LEXIS 26462, 105 U.S.P.Q. 2d (BNA) 1312 (2012)
ELI5:

Rule of Law:

Copyright protection for a creative work extends only to its original expression, not to the underlying ideas, concepts, or common elements. To prove infringement, a plaintiff must show that the accused work is substantially similar to the copyrighted work's protectable expression from the perspective of an ordinary observer.


Facts:

  • In the late 1980s, artist Gary Blehm developed cartoon characters called 'Penmen,' which have distinct features including round heads, large half-moon smiles, four fingers, and disproportionately long legs.
  • Between 1989 and 1993, Blehm created six posters featuring the Penmen characters and registered them with the U.S. Copyright Office.
  • Beginning in 1990, Blehm's posters were sold nationally through distributors and were displayed and sold in Boston-area stores, including the Harvard Coop and Prints Plus stores.
  • Starting in 1989, brothers Albert and John Jacobs designed and sold t-shirts in the Boston area, including in Harvard Square and at malls where Blehm's posters were also sold.
  • In 1994, John Jacobs drew a sketch of a figure with a wide smile, sunglasses, and a beret, which they named 'Jake' and began selling on t-shirts.
  • Over time, the Jacobses added a body to the Jake head and formed the Life is Good Company, portraying Jake engaging in various simple activities.

Procedural Posture:

  • Gary Blehm sued the Jacobs brothers and the Life is Good Company in U.S. District Court for copyright infringement.
  • Life is Good moved for summary judgment, arguing the works were not substantially similar.
  • The district court granted summary judgment in favor of Life is Good, holding that the legally protectable elements of the 'Penmen' were not substantially similar to the 'Jake' images.
  • Gary Blehm, as the appellant, filed an appeal of the summary judgment order to the U.S. Court of Appeals for the Tenth Circuit.

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Issue:

Does a cartoon character infringe on a copyrighted character when both share general ideas, themes, and poses, but differ in their specific artistic expression, proportions, and details?


Opinions:

Majority - Matheson, Circuit Judge

No. A cartoon character does not infringe on a copyrighted character if the similarities between them consist of unprotectable ideas, themes, and poses, while the particular artistic expression remains dissimilar. To establish infringement, a plaintiff must show that an accused work is substantially similar to the protectable elements of the copyrighted work. The court must first filter out unprotectable ideas, such as common anatomical features, everyday activities, and poses that naturally flow from those activities. In this case, the idea of a simple cartoon figure with a smile engaged in sports or other activities is not protectable. Blehm's protectable expression lies in the specific stylistic choices he made: the detached, all-black head with a white half-moon smile, the specific body proportions, and the four-fingered hands. When comparing these protected elements to the 'Jake' images, the court found they were not substantially similar. Jake's head is attached, white, and features sunglasses; his body proportions are different; and he often wears clothes and is depicted in color. These dissimilarities in expression are significant enough that no reasonable jury could find infringement, even if the underlying ideas are similar.



Analysis:

This case provides a clear application of the idea/expression dichotomy in copyright law to visual works, particularly cartoon characters. The court's detailed filtering of unprotectable elements before conducting the substantial similarity analysis reinforces the principle that copyright does not grant a monopoly over general themes or character archetypes. This decision serves as a gatekeeping precedent, empowering district courts to grant summary judgment in cases where similarities exist only at a high level of abstraction. It clarifies for artists and creators that legal protection adheres to the unique particularities of their expression, not the foundational concepts they choose to depict.

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