The 10th Circuit affirmed the lower court’s grant of summary judgment to the Life is Good company (“Life is Good”), holding that its character “Jake” did not infringe plaintiff Gary Blehm’s “Penmen” figures because the copyrightable expression of the works was not substantially similar 

Blehm produced a series of posters featuring original cartoon characters between 1989 and 1993. The “Penmen,” as he called them, were stick figures in different poses with large heads, crescent shaped smiles, and no other distinct facial features. Blehm alleged the Life is Good character “Jake,” created by brothers Albert and John Jacobs in 1994 (together with Life is Good, the “Life is Good defendants”), infringed “Penman.” Jake was also a large-headed, big-smiling stick figure, but unlike “Penman,” had eyes. Blehm invoked the similarity of the characters’ appearance and frequent coincidence of activities in which the characters engaged (carrying a birthday cake, catching a Frisbee between their legs, etc.).

The appellate court  affirmed the grant of summary judgment to the Life is Good defendants, ruling that the Penmen figures had, at best, a thin copyright in their simple depiction. Thus, even minor departures could result in non-infringing works. Moreover, emphasizing that Blehm’s copyright covered the way he depicted Penman carrying out the activities in which he engaged, the appellate court found no actionable similarity merely in the kind of activities the characters performed.  The 10th Circuit wrote, “Copying alone is not infringement. The infringement determination depends on what is copied. Assuming Life is Good copied Penmen images when it produced Jake images, our substantial similarity analysis shows it copied ideas rather than expression, which would make Life is Good a copier but not an infringer under copyright law."