Take two stick-figure cartoon characters and stick them side by side. Are there sufficient similarities between them to launch a copyright infringement case? Gary Blehm, a commercial artist who created the “Penmen” characters, thought so: But he lost his copyright infringement suit against Albert and John Jacobs, creators of the T-shirt company ‘Life is Good.’

The Jacob brothers created a cartoon character called “Jake” to accompany their slogan “Life is Good” for their T-shirt company in the 1990s.  Blehm claimed that “Jake” infringed on his character “Penman,” which he created in the 1980s for  posters. Penman later became part of a T-Shirt line, comic strip and book.  Although Penmen products were sold nationally, the Jacob Brothers claim they never heard of the cartoon character before the suit.

A U.S. District Court in Colorado, in an decision affirmed by an appellate court, granted summary judgment to the Jacob brothers finding there was no question of substantial similarities between the Jake and Penman images for a jury to consider. A copyright infringement claim requires (1) ownership of a valid copyright and (2) the copying of protectable elements of the work that are original.  The second element in question turns on whether there is a substantial similarity between the alleged infringing work and the legally protected elements of the copyrighted work to constitute copying.  The court does this by separating the ideas that are not protected from the expression that is.

Here, the court found that Blehm had no copyright over a cartoon character engaged in everyday activities like skateboarding or catching a Frisbee, nor could he copyright the use of common anatomical features like arms, legs, feet and hands.  These all belong in the public domain.

While Penman has elements of expression that can be protected, these come from Blehm’s stylistic choices such as the character’s rounded, half-moon smile that takes up much of his face and the lack of any other facial features; on close examination of both characters, their similarities had important differences or were not expressions that could be protected.  The court held that no reasonable juror could determine that Jake is substantially similar to the protected, expressive choices Blehm taps for Penman.

This decision contrasts with Sid & Marty Krofft Television Productions Inc. v.McDonald’s Corp., where the creators of H.R. Pufnstuf children’s television show succeeded in their copyright infringement case against  McDonald’s over the McDonaldland television commercials.

The court found there that the defendant’s works were substantially similar to plaintiff’s, capturing the “total concept and feel” of the Pufnstuf show: Both had imaginary worlds inhabited by fanciful creatures and plants; both lands were governed by mayors with disproportionate, large, round heads dominated by long, wide mouths.  The court stated, “We do not believe that the ordinary reasonable person, let alone a child, viewing these works will even notice that Pufnstuf is wearing a cummerbund while Mayor McCheese is wearing a diplomat’s sash.”