Entertainment Research Group, Inc. v. Genesis Creative Group, Inc.
122 F.3d 1211 (9th Cir. 1997)

  • ERG made giant inflatable costumes of well-known public domain characters (like Santa Claus), and copyrighted characters (like cartoon cereal spokesmen). When they found out that their competitors (Genesis and Aerostar) were making similar inflatable costumes. They sued for copyright infringement.
    • ERG argued that Aerostar was copying their giant inflatable Santa Claus costume.
    • Aerostar argued that they were copying the underlying original character. While ERG could copyright their exact giant inflatable costume, they could not prevent others from making giant inflatable costumes based on public domain characters, or costumes based on characters copyrighted by another copyright holder.
      • So, just because Pillsbury licensed the Pillsbury doughboy to ERG, that didn't give ERG the right to prevent Pillsbury from licensing the same character to other costume-makers.
  • The Trial Court found for Genesis and Aerostar. ERG appealed.
  • The Appellate Court affirmed.
    • The Appellate Court found that if a derivative work (in this case a giant inflatable costume) is sufficiently different from an underlying work (in this case Santa), then that derivative work is copyrightable under 17 U.S.C. 103.
      • See Doran v. Sunset House Distributing Corp. (304 F.3d 251 (1962)).
    • However, the Court found that Aerostar's costumes were sufficiently different enough that it was obvious that they were copying the underlying character, and not ERG's specific designs.
    • The Court noted that if they had decided the other way, it would have given ERG a de facto monopoly over the underlying characters.
  • This case established a two-prong test to determine the copyrightability of a derivative work. In order to be copyrightable:
    • The derivative work must have original aspects that are "more than trivial," and
    • Granting the copyright in the derivative work will not affect the copyright protection in the underlying work.