## Facts

- Catherine Conrad, a self-employed entertainer known as the “Banana Lady,” performed in a banana-shaped costume at a credit-union trade-association event.
- Conrad alleged she conditioned the engagement on a rule that attendees could take photos or videos only for “personal use,” which she understood to forbid posting online.
- Attendees photographed and recorded the performance and later posted images and videos on websites and social-media platforms.
- Conrad asserted infringement of intellectual-property rights, emphasizing copyright.
- Conrad held copyrights in certain photos and sculptures depicting her in the banana costume, but did not plead a clearly protectable copyright in the costume itself.
- Conrad had previously sued in Wisconsin state court over the same incident; that action was dismissed and the dismissal was affirmed on appeal.
- In federal court, the district court dismissed most claims as barred by claim preclusion and dismissed the remaining federal copyright claim for failure to state a claim.

## Issues

1. Whether most claims were barred by claim preclusion because they arose from the same transaction litigated to final judgment in prior Wisconsin state-court litigation.
2. Whether Conrad stated a plausible federal copyright-infringement claim based on (a) her live performance and/or costume, and (b) audience-created photos and videos posted online as allegedly unauthorized derivative works of her copyrighted photos and sculptures.

## Decision

- The Seventh Circuit affirmed dismissal of the action in full.
- The court agreed that most claims were barred by claim preclusion due to the prior state-court judgment.
- The court held the remaining federal copyright claim failed on the merits:
  - the live performance was not protected absent fixation in a tangible medium;
  - the costume’s copyrightability was doubtful as presented; and
  - the audience photos and videos were not plausibly alleged to be unauthorized derivative works of Conrad’s copyrighted photos or sculptures.
- The court noted Conrad did not plead potentially relevant statutory theories addressing unauthorized recording of performances or public display rights.
- The court criticized Conrad’s repeated meritless litigation and suggested lower courts consider filing restrictions tied to unpaid litigation obligations, without imposing an injunction itself.

## Legal Principles

- Claim preclusion bars later claims arising from the same transaction when a prior final judgment involved the same parties (or their privies) and could have adjudicated the later-asserted theories.
- Copyright protection under 17 U.S.C. § 102(a) requires fixation in a tangible medium; an unfixed live performance is not independently copyrightable.
- A derivative-work claim under 17 U.S.C. §§ 101, 106(2) requires plausible copying of protectable expression from a preexisting copyrighted work; new recordings depicting a performer generally are not derivative works of the performer’s separate copyrighted photos or sculptures absent such copying.
- A complaint must invoke and support the statutory basis for relief; generic references to “intellectual property” or “copyright infringement” do not substitute for pleading applicable provisions.
- Federal courts may consider restrictions on vexatious litigants who repeatedly file frivolous actions, consistent with applicable procedural safeguards.

## Conclusion

The Seventh Circuit affirmed dismissal because prior state-court litigation precluded most claims, and the remaining copyright theory failed: the live performance lacked fixation, the costume’s protectability was doubtful on the pleadings, and the posted photos and videos were not plausibly derivative works of Conrad’s copyrighted photos or sculptures.


Conrad v. AM Cmty. Credit Union, 750 F.3d 634 (7th Cir. 2014)