Max Fleischer's descendants can't revive their copyright claim over the licensing of Betty Boop merchandising, the Ninth U.S. Circuit Court of Appeals ruled Wednesday.
The court ruled in a 2-1 decision that the chain of title had been broken after the original sale of the rights to Betty over 70 years ago. In essence, it said, Fleischer's family lacks a valid copyright or trademark for Betty.
A 1930 court opinion said that Fleischer created the appealing female who "combined in appearance the childish with the sophisticated -- a large round baby face with big eyes and a nose like a button, framed in a somewhat careful coiffure, with a very small body."
In 1941, Fleischer transferred the rights to Betty Boop's image and cartoons to Paramount Pictures Inc. According to the family, the rights were transferred several more times before they reverted to the family through their firm, Fleischer Studios Inc.
Afterward, the family started to license Ms. Boop for use in merchandise. A.V.E.L.A. Inc., a company which licenses images of the character, were sued by the family for copyright infringement.
The claim was initially dismissed by U.S. District Judge Florence-Marie Cooper -- who found a lack of enough evidence linking the chain of title from 1955, when Paramount sold the character to UM&M TV Corp., to 2007, when the Fleischers bought the rights.
Senior Judge J. Clifford Wallace wrote for the appellate court. He concurred that the agreement Paramount and UM&M transferred the rights to the Boop cartoons, thus breaking the chain of title. However, it "explicitly provided that the right to the Betty Boop character copyright was retained by Paramount," he wrote.
The family argued that the "doctrine of indivisibility" would have stopped UM&M from renewing its copyright if Paramount had held on to its own copyright to the Betty Boop character. But Wallace said that the doctrine "does not deprive copyright holders of the right to transfer or, in this case, retain the component parts of their copyrights."
A trademark infringement claim wasn't possibly, either, said Wallace, since the A.V.E.L.A. products were using Betty Boop's name and image as "aesthetic components" benefiting consumers.
A.V.E.L.A. licensed Betty Boop dolls, T-shirts and handbags under a copyright based on vintage posters. Wallace said that there was no trademark infringement, since the company neither misled customers nor claimed that its products are "official."
"If we ruled that A.V.E.L.A.'s depictions of Betty Boop infringed Fleischer's trademarks, the Betty Boop character would essentially never enter the public domain," he wrote.
Wallace was joined in his opion by Senior U.S. District Judge Richard Mills of the Central District of Illinois. Judge Susan Graber, in a dissenting opinion, argued that there was no break in the chain of title.
In an aside, the Court of Appeals noted that the iconic Boop image has attained "such a high level of popularity that even drug dealers have been known to use it." The reference was to a 2004 Minnesota search warrant that yielded "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. A.V.E.L.A., Inc, 09-56317. The Ninth U.S. Circuit Court of Appeals sits in San Francisco.
Lawyers for Fleischer Studios and A.V.E.L.A. did not immediately return calls asking for comment.