NEW YORK, Feb 23 (Reuters Legal) - The family of Betty
Boop's creator lost its bid to be declared the exclusive owner
of the copyright to the popular cartoon character.
A divided 9th Circuit U.S. Court of Appeals on Wednesday
said descendants of Max Fleischer were not entitled to control
of the character, who is known for her large eyes, baby face,
tightly coiffed black hair, short dresses and high heels.
Judge J. Clifford Wallace wrote for a 2-1 majority that the
plaintiff Fleischer Studios Inc could not prove it had title to
the character, which Max Fleischer sold 70 years ago to
Paramount Pictures Inc and later went through other hands.
Wallace also said the defendant AVELA Inc, which licensed
Betty Boop dolls, T-shirts and handbags under a copyright based
on vintage posters, did not infringe any trademark, having not
held out its products as "official" or misled customers.
"If we ruled that AVELA's depictions of Betty Boop infringed
Fleischer's trademarks," the judge wrote, "the Betty Boop
character would essentially never enter the public domain."
Lawyers for Fleischer Studios and AVELA did not immediately
return calls seeking comment.
Max Fleischer created Betty Boop in 1930 and sold rights to
the character to Paramount Pictures Inc in 1941. Fleischer died
in 1972.
Wallace rejected Fleischer Studios' argument that Paramount
sold the character in 1955, in a chain of title that ultimately
led to its 1997 reacquisition of an exclusive copyright.
Indeed, the judge said there was evidence that Paramount
transferred the copyright in 1958 to Harvey Films, known for
characters such as Casper the Friendly Ghost.
Judge Susan Graber dissented, saying there was no break in
the chain of title. The 9th Circuit sits in San Francisco.
Betty Boop's cultural impact evidently extends even to drug
dealers.
Wallace pointed to 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."
The case is Fleischer Studios Inc v. AVELA Inc et al, 9th
U.S. Circuit Court of Appeals, No. 09-56317.
For Fleischer Studios: Robert LoBue, Gloria Phares and A.
Leah Vickers of Patterson Belknap Webb & Tyler; Rex Heinke of
Akin Gump Strauss Hauer & Feld.
For AVELA: Douglas Winter of The Ball Law Firm.
(Reporting by Jonathan Stempel of Reuters; Additional
reporting by Terry Baynes of Reuters Legal)