U.S. District Judge Audrey B. Collins in Los Angeles has ruled in Fleischer Studios Inc. v. A.V.E.L.A. Inc. that the “Betty Boop” word mark, when used with the character’s cartoon image, is both aesthetically functional and a fair use. She, thus, found no copyright infringement by defendants and granted them summary judgment. Again. This is the latest action in protracted litigation over ownership of the intellectual property of Betty Boop. The plaintiff is related to Max Fleischer, the cartoon character’s creator. While it is undisputed that Fleischer sold all rights to Betty Boop long ago, the family tried to repurchase intellectual property rights in the 1970s. Acting on their belief that they had successfully acquired these, they began licensing the character’s use for merchandise. A.V.E.L.A. also licenses the Betty Boop character for merchandise, utilizing depictions and the name from vintage posters that the firm claims are in public domain. The Fleischers sued for copyright and trademark infringement, launching this complicated court battle.
Originally, the late U.S. District Judge Florence-Marie Cooper granted summary judgment to A.V.E.L.A., holding that the Fleischers did not have a valid copyright or trademark in the character. On appeal, the Ninth Circuit upheld Cooper’s rulings, but based its trademark findings on the aesthetic functionality doctrine, which the District Court did not. So the Fleischers sought a rehearing.
The superseding opinion upheld the District Court on the image mark and copyright claims but vacated the word mark claims and remanded the case. Collins, in this lastest decision, has had the final word — for now — and A.V.E.L.A. can continue to license the character and name for its merchandise.