Moonbug Entertainment Limited v. Babybus Network Technology Co., Ltd

Background

This copyright-infringement case concerns Moonbug Entertainment Limited and Treasure Studio, Inc.’s CoComelon preschool series. Moonbug alleged that BabyBus Co., Ltd. and BabyBus (Fujian) Network Technology Co., Ltd. copied the series. Trial began on July 5, 2023. In preparing the jury instructions, the court determined that the CoComelon works—including the main character, JJ—were entitled to “thick,” or broad, copyright protection. This order explains that determination.

Legal standard

After copying is found, the Ninth Circuit uses a two-part “extrinsic/intrinsic” test to determine whether the copying amounted to unlawful appropriation. The extrinsic part includes comparing similarities between the copyrighted and accused works. The court must first determine whether a work receives thick or thin protection. With broad protection, the accused work must be substantially similar to the protected expression. With thin protection, the works must be virtually identical.

The range of creative choices determines the level of protection. Artistic and fictional works generally receive broad protection when they allow many expressive choices, while factual works generally receive thin protection when the possible expression is more limited.

Parties’ positions

BabyBus argued that CoComelon should receive only thin protection because the range of possible expression for baby cartoon characters in that genre is narrow. Moonbug argued that the broader protection given to artistic works was appropriate.

Court’s analysis

The court concluded that depicting an animated human baby allows more creative choices than depicting a simple object or a narrowly constrained subject. Although baby characters may share common features such as oversized heads, large eyes, and button noses, designers can vary many other features. The court identified choices involving head shape, teeth, cheeks, hair, eyes, eyebrows, clothing, accessories, physical proportions, race, ethnicity, gender, and hairstyle.

The court also found that an animated character’s expressive range includes movement, animation style, maturity, behavior, hobbies, backstory, voice, intonation, and personality. The court treated JJ’s appearance and personality as one combination of many possible creative choices, rather than as a subject with only a narrow range of possible expression.

The court further concluded that the family and animal characters and the episodes allowed an even wider range of expression. Designers could vary family composition, character relationships, personalities, music, lyrics, rhythm, instruments, tempo, visual style, perspective, pace, and scene composition.

The court recognized that copyright protection cannot extend to the general idea of cartoons depicting babies and toddlers engaged in everyday activities, or to common genre features that are not protected. Those unprotectable elements would be filtered out during the extrinsic comparison. Broad protection instead covered the particular protected expression in CoComelon’s version of an animated baby character and the other copyrighted works.

Ruling

In Moonbug Entertainment Limited v. Babybus (Fujian) Network Technology Co., Ltd., Judge Edward M. Chen concluded that the copyrighted works at issue were entitled to thick, or broad, protection. The court stated that the jury was properly instructed to determine whether the protected elements of the copyrighted works and the accused works were substantially similar.