Copyright vs. Trademark Claims

The original decision by the Ninth Circuit Court of Appeals in Fleischer v. A.V.E.L.A. has been discussed at length for its reliance on the aesthetic functionality doctrine to find the “Betty Boop” cartoon character unprotectable under trademark law. Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 636 F.3d 1115 (9th Cir. 2011) (“Fleischer I “). That decision received substantial criticism, and after a petition for rehearing supported by several amicus briefs, it was withdrawn and replaced with a new opinion that makes no mention of aesthetic functionality. Fleischer Studios, Inc. v. A.V.E.L.A., 654 F.3d 958 (9th Cir. 2011) (“Fleischer II “). Whatever one thinks of the ruling in Fleischer I, the decision serves as an important reminder of something for which it has received far less attention: its careful consideration of the distinctions between copyright and trademark protection. Too often, parties and the courts treat trademark claims as ill-fitting substitutes for a copyright claim. But there are fundamental differences in the protections afforded under each body of law, resulting from the very different purposes that they serve. Fleischer I should be applauded for properly delineating copyright and trademark protections.