The 9th Circuit has ruled that Betty Boop is a free woman, i.e., that the family of her creator Max Fleischer has failed in its assertion of copyright and trademark rights in the cartoon character.
The underlying lawsuit concerned Betty Boop merchandise sold by defendants A.V.E.L.A., Art-Nostalgia.com, X One X Movie Archive and Leo Valencia; Fleischer Studios alleged this merchandise was in violation of its copyright and trademark, but the court found that the family had no such rights to assert.
The Betty Boop character was created in the 1930s and sold to Paramount Pictures in the early 1940s. After the creator’s death in 1972, his family began to fight for intellectual property rights in the iconic cartoon.
In its analysis (PDF), the court looked closely at the chain of ownership, and found that the Paramount transferred some rights to the character to UM&M in 1955 but that the agreement “explicitly provided that the right to the Betty Boop character copyright was retained by Paramount, rather than transferred to UM&M.” In the district court decision below, the trial judge had found that the Fleischer family had failed to provide proof of an alleged later transfer from UM&M to National Telefilm Associates (which became Republic Pictures), which then allegedly transferred the copyright to Fleischer Studios.
The appellate court noted that Paramount did transfer the copyright to Harvey Films three years later, but as the Fleischer family had rested its claim on the chain of ownership from UM&M down through the years and failed to prove the links between transactions, the appellate court ruled that the district court properly dismissed the copyright claim.
The court also found against Fleischer Studios on the trademark claim:
Even if Fleischer owns trademarks in Betty Boop, it cannot assert a trademark infringement action against A.V.E.L.A. [whose] use of Betty Boop is functional and aesthetic, and because ruling in Fleischer’s favor would prevent the Betty Boop character from ever entering the public domain, Fleischer’s infringement claim is barred.
And we have yet another reminder of why it’s so important to have your copyrights and trademarks in order.