Mighty Morphin’ Power Knockoffs
Reviewed by Kyu Hee Chu
Halloween may have come and gone, but copyright battles involving characters from TV shows may still be full of tricks and treats for legal minds. The company that owns the rights to the Power Rangers television series, SCG Power Rangers LLC, has filed a lawsuit against Underdog Endeavors, who operates MyPartyShirt.com, alleging that their Power Ranger costumes infringe its copyrights and trademarks.
Though it is well established – and a thorn in the side of the fashion industry- that copyright protection does not generally extend to the designs of clothing insofar as permitting a “useful article” such as clothing to be copyrighted, one must be aware that the copyrighting of “pictorial, graphic, or sculptural” works is permitted; for example, the patterns printed upon a textile may be subject to copyright.
The Hollywood Reporter asks, “Obviously, if a costume is packaged or promoted using a trademarked name, that’s actionable. And reproducing a copyrighted character (like with a Harry Potter or Green Lantern mask) likely would be a violation of derivative rights in a copyright. But what about costumes that merely look like famous characters?” It seems like the case is unlikely to go so far, however.
SCG, in its complaint, avers that it owns “all intellectual property rights relating to the popular ‘Power Rangers’ television series, brand, and related products.” Compl. at 1, ll. 13-15, SCG Power Rangers LLC v. Underdog Endeavors, Inc., No. CV11-08485 JHN (C.D. Cal. Filed Oct. 13, 2011). The “Power Rangers are known for their “distinctive signature color-coded battle suits from which they take their respective names… [including] Red, Yellow, Blue, Pink, Green, Black, White, and Gold…” Compl. at 2, ll. 25-27. The complaint claims that “[i]ncluded in the Power Rangers IP are copyrights relating to the artwork and design of the Power Rangers uniforms,” as well as trademark registrations. Compl. at 3, ll. 6-7 (emphasis added).
A search of MyPartyShirt.com’s website does not reveal the allegedly infringing items, likely because they have since been removed in the wake of the complaint, but the Google Cache of a search of the website for “power ranger” reveals somewhat damning results. Three costumes pop up, each referred to as a “Power Rangers” costume, and further distinguishing each character as the “Pink Ranger” or “Red Ranger.” If perhaps the costumes had solely been described as “Pink Ranger” or “Red Ranger” costume, the trademark infringement would not seem so egregious and perhaps might even lend itself to some vagueness of mark for a judge who might not be aware that each character is referred to by its color (and this issue in and of itself might be seen as not being enough to distinguish trademark, given the Louboutin red sole’s color recently not being seen as unique enough for trademark), but given that the full titles of each costume are, respectively, “Red Ranger Power Rangers Muscle Costume” and “Pink Ranger Power Rangers Women’s Costume,” the results seem somewhat damning in the trademark sphere. Slightly farther from such obvious trademark infringement might be the “Pink Power Ranger Sexy Women’s Costume”, which may be seen as parodic, but the use of the name may still prove problematic from a consumer confusion standpoint – the use of the name would seem to imply an endorsement by the owners of the Power Rangers IP, which clearly does not exist.
Beyond the name, the costumes themselves would appear exceedingly problematic. The Power Rangers brand includes a number of incarnations of the Power Rangers characters, with varying costumes around particular thematic elements that arguably have become closely tied to the brand in the consumer conscious. Each Ranger is, of course, identifiable by a specific color, but the team itself is tied together by generalized uniformity of their costumes, involving skintight suits in their specified color with diamond designs, and helmets which are modeled after prehistoric animals, with the Red Ranger having a Tyrannosaurus Rex helmet design, and the Pink Ranger having a Pterodactyl helmet design, harkening to the “Zord” vehicles they use within the series. Mighty Morphin Power Rangers: Season Description and Ranger Bios (Nov. 4, 2011, 4:00 PM), http://powerrangers.com/seasons-mighty-morphin.html#. The costumes have varied with different incarnations of the show, but this was the earliest and the likely costumes that were the subject of MyPartyShirt’s copying. The similarities are striking, if not perfect: the diamonds across the chest and in the gloves (transformed into part of the sleeves), the silver molded mouth, the animals referenced in the helmets’ design, even the slight skirt or tunic the Pink Ranger’s costume adds. The problem may be that, since the costumes are not exact copies, a copyright violation may not incur based on textile design. There is of course the more easy, obvious case that the characters themselves are copyrighted, and these costumes hardly seem vague enough to invoke a sort of “scenes a faire,” “obligatory/obvious for the genre” exception (as might a more general “space ranger” costume with just a helmet and metallic spandex suit). In fact, the case seems closely similar to Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211 (9th Cir. 1997), cert. denied, 118 S. Ct. 1302 (1998). In that case, the works created by Entertainment Research Group (ERG) – inflatable costume versions of characters to which Genesis held the copyright – were still held to be subject to Genesis’ copyright as derivative works, not distinguishable, separate works. 122 F.3d at 1218. This makes it seem pretty likely that costumes of copyrighted characters are copyrightable as derivative works, and thus MyPartyShirt’s costumes are infringing works.
Perhaps in the case of the “Sexy Pink Ranger” costume, MyPartyShirt might be able to make some defensive claim as to parody, though this seems pretty weak, especially in hand with the trademark issues, where Courts have been less favorable to see parody claims. However, the more literal costumes, especially with the particularly characteristic helmets, would seem to be in dire jeopardy. Unless MyPartyShirt can come up with some pretty strong defenses, it seems like SCG will be able to zap their competitor’s costumes to cosmic dust.