A Madison woman who performs as “The Banana Lady” – and has filed several pro se lawsuits against people she claims damaged that image – had another appeal shot down Monday.
Catherine Conrad – who dresses up as the fruit for events – performed a singing birthday telegram at the Credit Union National Association’s annual conference in 2011. She filed a suit in Dane County against the now-defunct AM Community Credit union in Kenosha, claiming she was owed damages because several people in the audience took pictures or recorded the performance and posted it on the Internet.
Dane County Circuit Judge William Foust tossed the state case in January 2013. In June, she filed another case against the credit union in federal court, but Western District Judge Barbara Crabb threw out the case in August because, in part, Conrad merely restated the same claims as the earlier suit.
On Monday, the 7th U.S. Circuit Court of Appeals upheld Crabb’s decision. The decision, authored by appeals Judge Richard Posner, contains a picture of Conrad in her costume that was ripped from a YouTube video.
The opinion only addresses a copyright claim Conrad brought up, as Conrad has copyrights of photos and sculptures of her in the costume. The performance, however, is not copyrighted or copyrightable, Posner’s opinion states, since it is not “fixed in any tangible medium of expression” such as a recording or a “dance notation.”
Conrad hung up when contacted Monday afternoon.
Foust’s opinion in the state case was upheld by the Wisconsin Court of Appeals in March.
The credit union’s attorney, Patryk Silver of Borgelt, Powell, Peterson & Frauen SC, did not immediately return a phone call Monday afternoon.
Conrad and her business partners have been at the heart of several lawsuits at the circuit and federal level in recent years. They have racked up more than $150,000 in attorney’s fees and sanctions that they have yet to pay, and court records show that Conrad and her partners have a pattern of aggressively pursuing claims and then suing the attorneys who represent the defendants once those claims fail.
Posner commented on that history in Monday’s opinion, writing that he “cannot end this opinion without remarking her abuse of the legal process by incessant filing of frivolous lawsuits.”
He noted that the case in question is at least the eighth filed by her in federal court, and that she has filed at least nine in Dane County since 2011. He also detailed several of the cases he sees as frivolous.
“She … once sued her web hosting company for taking down her web site after she failed to pay the bill,” the opinion states about Conrad. “The web host had paid $4000 to compensate her for ‘lost business’ while the web site was down – even though it was down because of her failure to pay.
“She pocketed the $4000 but sued the web host – and in both state and federal court – anyway,” it continues.
Posner recommends the Western District judges “should consider enjoining her from filing further suits until she pays her litigation debts.”Follow @eheisigWLJ