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
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
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
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.