Can a pun be copyrighted?

T-Shirt from Gymboree

Novelty t-shirts displaying witty sayings and clever puns are quite the trend nowadays. The children’s clothing company Crazy8, a subsidiary of Gymboree, is offering these types cleverly-phrased t-shirts to tots around the country. However one particular shirt (seen to the left) containing the phrase, “lettuce turnip the beet,” has Gymboree facing a suit for copyright and trademark infringement.

Artist Elektra Gorski has been selling t-shirts (shown on the right) containing the same phrase on Etsy  for several years now, longer than Gymboree. Gorski claims that Gymboree has violated her copyright and trademark rights and has brought suit in the Northern District of California.

T-shirt from Elekra Gorski

Gorski argues that Gymboree’s t-shirt overall has substantially similar design elements. However, the Court held that the only commonality among the shirts was the phrase, “Lettuce Turnip the Beet.” According to copyright law, a short phrase cannot be copyrighted no matter how distinctively it is arranged.

In regards to the trademark claim, Gymboree argued that their use of the phrase falls under the fair use rule doctrine. Essentially, this doctrine states that a mark may be used to describe the product it is associated with so long as it does not create confusion about the product source OR imply an endorsement of the product or brand the mark represents.

The case has been scheduled for dispositive motion practice in June 2015, and the trial will be held in Decemeber 2015.

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