Betty Boop too functional for trademarking
Fleischer Studios v. AVELA, Inc., 2011 USApp LEXIS 3487 (9th Cir. 2011)
Back in the 40’s, the original creator of Betty Boop sold off the film and character rights.  Plaintiff (formed by the decendants of the creator of Betty Boop) formed in the 70’s to repurchase those rights. They sued defendants for copyright and trademark infringement.  The Court of Appeals shot down plaintiff’s copyright arguments because plaintiff failed to prove chain of title that it ever actually repurchased character rights to Betty Boop. The Court of Appeals then applied the Jobs Daughters decision (633 F.2d 912 (9th Cir. 1980)) to find that use of Betty Boop’s image on products is functional. Furthermore, using trademark law to prevent such use would be an end-run around copyright law that would prevent Betty Boop from ever entering the public domain.
