Thursday, February 24, 2011
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Court: Family of Betty Boop Creator Does Not Own Rights
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday declined to revive a copyright suit by the family of the creator of Betty Boop over the licensing of merchandise bearing the image of the sweet and seductive baby-doll character.
In a 2-1 decision, the panel concluded the descendants of Max Fleischer lacked standing to pursue their claim due to the broken chain of title following the original sale of the rights to the Betty Boop character over 70 years ago.
Fleischer created the female character which “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,” according to an earlier court opinion, in 1930. Betty Boop was featured in several cartoon films.
A 2002 TV Guide poll ranked Betty Boop as the 17th greatest cartoon character of all time, and the appellate court noted her image has reached “such a high level of popularity that even drug dealers have been known to use it,” referencing a 2004 Minnesota search warrant that turned up “a large ceramic Betty Boop doll, with four concealed, separately wrapped plastic bundles of high-purity-level methamphetamine inside.”
Fleischer, however, transferred the rights to Betty Boop’s image and cartoons to Paramount Pictures Inc. in 1941, and they passed through several hands before being acquired by the family through their corporate entity, Fleischer Studios Inc., the family claimed.
After they obtained what they claimed were the exclusive rights to Betty Boop, the family began licensing the character for use in merchandise, and sued A.V.E.L.A. Inc.—which licenses images of the character—for copyright infringement.
U.S. District Judge Florence-Marie Cooper, now deceased, dismissed the family’s claim, finding insufficient evidence connecting the chain of title after Paramount’s 1955 sale of the character to UM&M TV Corp. until the family purchased the rights in 2007.
Writing for the appellate court, Senior Judge J. Clifford Wallace agreed that the chain of title was broken since the purchase agreement between Paramount and UM&M transferred the rights to the Betty Boop films, but “explicitly provided that the right to the Betty Boop character copyright was retained by Paramont.”
He rejected the family’s contention that the doctrine of indivisibility would have prevented UM&M from renewing its copyright if Paramount had retained the copyright to the Betty Boop character, explaining that the doctrine “does not deprive copyright holders of the right to transfer or, in this case, retain the component parts of their copyrights.”
Wallace also said the family could not assert a trademark infringement claim against since the objected-to A.V.E.L.A. products were using Betty Boop’s name and image as aesthetic components which constituted the actual benefit consumers wished to purchase.
He added that ruling in the family’s favor also “would prevent the Betty Boop character from ever entering the public domain.”
Senior U.S. District Judge Richard Mills of the Central District of Illinois, sitting by designation, joined Wallace’s opinion, but Judge Susan Graber dissented, contending there was no break in the chain of title.
The case is Fleischer Studios, Inc. v. A.V.E.L.A., Inc, 09-56317.
Copyright 2011, Metropolitan News Company