IP Law Daily, COPYRIGHT—S.D.N.Y.: Manatee has a human girlfriend and a ‘laid back attitude’ but no copyright protection, (Jun 5, 2024)

By Matthew Hersh, J.D.

A short-lived Comedy Channel series did not infringe any protected feature of the aquatic character.

The author of a short, animated work featuring a manatee who offers commentary on life while navigating his home in the Everglades did not state a copyright infringement claim against the makers of a popular television show featuring a “weed-dealing manatee” with a foul mouth and a crude sense of humor who spends his days “in a tank at the Central Park Zoo,” the federal court for Manhattan has held. The court, in its short opinion, found that any overlapping features between the featured manatee characters were too generic to be protectable and that the overall concept and feel of the two works was not substantially similar (Kassel v. Moynihan, No. 1:23-cv-06958 (S.D.N.Y. June 3, 2024)).

The work at the center of the lawsuit is Happily Everglades After, a storyboard animatic posted to YouTube by author Daniel Kassel. The work, originally titled Jukebox Manatee, tells the story a manatee protagonist with a laid-back attitude and a human girlfriend who, in the words of the complaint “suffers misfortunes as a commentary on life and its travails with irony and black humor.” The author finalized the work, after “brainstorming” with fellow students in the Pratt Institute, in 2018.

But the author did not take a laid-back approach to the release of Loafy, a one-season adult animated comedy premiering on the Comedy Central digital platforms in August 2020. The show, created by former Saturday Night Live cast member Bobby Moynihan and made by production company Cartuna, is (according to its publicity materials) “a semi-improvised animated series about a weed-dealing manatee who spends his days getting high and lazing around his tank at the Central Park Zoo.” Kevin Smith, Jason Mewes, Gina Gershon, and Tom Green, among others, provide voiceovers for the series.

The author of the original storyboard animatic sued Comedy Central (along with Cartuna and Moynihan) for copyright infringement, unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and deceptive acts and practices under Section 349(a) of New York’s General Business Law, N.Y. Gen. Bus. Law § 349(a). Comedy Central, along with the other defendants, moved to dismiss.

Copyright infringement. The court made short work of the copyright infringement claim. Because two of the author’s Pratt Institute classmates later worked at the production company that developed the show, the court noted, Comedy Central did not challenge the claim of access. But the comedy channel did challenge the copyright claim on grounds of lack of substantial similarity—and it easily prevailed.

The two works were not substantially similar, the court found, because any similarities between the two manatee characters revolved around unprotectable elements. To the extent that each show featured a talking manatee protagonist with a laid-back attitude, that feature was “far too generalized to be protectable, the court found. (“Plaintiff’s four-minute cartoon short does not entitle him to exclusive copyright protection over all works with a talking manatee,” the court emphasized.) Nor did it matter that the manatee had a human girlfriend and suffered “misfortunes as a commentary on life,” the court noted. A “human girlfriend” is “an even more basic, unprotectable character type,” the court noted—and a protagonist who suffers misfortune as a commentary on life “is an unprotectable, basic stock theme.” There were no similarities between protectable features as a result, the court concluded.

And even if the author’s manatee character were unique enough to be protectable, the court found, the “total concept and feel of the two works” was not substantially similar in any event. The original animated short was a four-minute work drawn in stop-motion animation, set in the Everglades, featuring a manatee character who “appears optimistic despite being run over and physically scarred by humans in a boat.” The Comedy Central work was an eight-part animated series, set in a dilapidated zoo near Central Park, featuring “a foul-mouthed and crude drug dealer” whose humor was “designed to leave the viewer laughing.” These and other differences in concept and feel made the author’s claim implausible even on the pleadings.

Unfair competition. The court easily dispatched this claim. The author asserted that Comedy Central and its co-defendants were “falsely describing the origin of the[ir] infringing work as conceived of by [them]... thereby palming off [the author’s] work as that of [the defendants].” But the Lanham Act’s proscriptions against false designations of origin and unfair competition, as Comedy Central pointed out in its motion, apply only to “tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” The author did not respond to this argument, thus deeming it conceded.

Deceptive acts and practice. The court easily dismissed the state law claim as well. Comedy Central argued that this claim should be dismissed, the court noted, “because it alleges no additional element beyond purported infringement, and is therefore preempted by the Copyright Act.” But the author did not respond to this argument either, thus deeming it conceded as well.

The Case is No. 1:23-cv-06958.

Judge: Rochon, J.

Attorneys: Armando Llorens (Furgang & Adwar LLP) for Daniel Kassel. Mark Thomas Ciani (Katten Muchin Rosenman LLP) for Robert Moynihan, Jr.

Cases: Copyright Trademark NewYorkNews