Revisiting the Silvertop banana costume case

Silvertop v. Kangaroo (3d Cir. 2019) held that a banana costume was both copyrightable and infringed:

In holding that the costume was protectable, the Third Circuit reasoned:

Although a banana costume is likely to be yellow, it could be any  shade of yellow—or  green or brown for that matter. Although a banana costume is likely to be curved, it need not be—let alone in any particular manner. And although a banana costume is likely to have ends that resemble a natural banana’s, those tips need not look like Rasta’s black tips  (in color, shape, or size).

Commenting on this reasoning, Jamie Boyle and Jennifer Jenkins said: 

So, while the court admits that a banana costume is likely to be yellow and curved, it says it could also be brown and straight. On Halloween, when your child goes out in her brown, straight, banana costume and her friends ask “why are you dressed up as a stick!?” she will be able to respond with a simple, terse explanation. “Star Athletica,” she will say.

(It's not really Star Athletica that is the direct culprit, but the court's cramped understanding of scenes a faire/basic designs; Star Athletica just means that all the limiting work is done by idea/expression and similar doctrines, and the court misapplied Star Athletica's holding that the designer's intent is irrelevant to separability to the separate issue of whether the designer did something creative/original.)

Anyway, the court has a possibly better argument: "copyrighting Rasta’s banana costume would not  effectively monopolize the underlying idea because there are many other ways to make a costume resemble a banana.  Indeed, Rasta provided over 20 non-infringing examples."

So I decided to take a look at the record.

First, there aren't "over 20"--there are 21 pictures, 2 of which are of a costume from Arrested Development. (I only used one of those two pictures.) Of the 20 costumes--treating minor variations as different costumes--3 are "sexy" bananas, a different 6 cover the face, 1 is a guy in a yellow suit with a hood, and 1 is an odd Wolverine. Maybe that's still enough to justify protection for Rasta's version, but the fact that no one noticed Wolverine in there suggests to me that principles of equity were doing more work than copyright principles.

On the other hand, the court isn't really suggesting that noninfringing costumes need to be straight and brown or green. Yay?