Halloween Costumes And Copyright: 5 Things You Should Know

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact

This is a tough time of year if you are an intellectual property lawyer who likes to dress up. Anyone who knows about your job will be unable to resist lame and legally incorrect jokes about your Halloween costume.  If you wear a Mohawk wig, they will quip that you are infringing Mr. T’s copyright. If you wield a sword and don a fur coat, they will ask if you had permission to use the “patent” from Game of Thrones.

How do you respond? Do you engage in sophisticated badinage about the doubtful copyrightability of an unoriginal hairstyle? Do you tell them that patent and copyright are two different things? Do you explain that trademark infringement is a more likely… no; waste of time. Instead, why not respond with some real facts about Halloween costume copyrights?  Here are five things you should know:

  1. The Useful Article Doctrine Applies to Costumes . . .

When litigation over allegedly pirated Halloween costumes first started bubbling up in the late 1980’s, the courts turned to the “useful article doctrine,” which embodies Congress’ intent to exclude functional industrial design from the Copyright Act. A useful article is defined under 17 U.S.C. § 101 as an item with “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Useful articles don’t get copyright protection, which means that, for the most part, you can’t own a copyright in, say, the shape of an automobile or a television set.

The useful article doctrine also applies to clothing (excluding the two-dimensional pattern of the fabric). In general, there is no copyright protection for the shape of clothing, and that includes costumes. For example, the Eastern District of New York, in Whimsicality, Inc. v. Rubie’s Costumes, held that a children’s costume with a torso in the shape of a pumpkin was a useful article because it was essentially just clothing. Sure, costumes are a specialized type of clothing, but that specialization also serves a purpose inseparable from the costume’s appearance: the purpose of masquerading. The Copyright Office agreed and, in 1991, issued a Policy Decision on the Registrability of Costume Designs, which stated that “fanciful costumes will be treated as useful articles” generally not subject to copyright protection because they “serve a dual purpose of clothing the body and portraying their appearance.”

  1. . . . but not Masks

Masks, as opposed to body costumes, are not useful articles. In Masquerade Novelty v. Unique Industries, the Eastern District of Pennsylvania held (incorrectly) that masks configured to resemble the noses of a pig, elephant and parrot were useful articles because they served the “utilitarian purpose of allowing a person to create humor by masquerading in an animal’s nose.”  The Third Circuit disagreed, holding that the function of the masks was “merely to portray the appearance” of something. Therefore, they did not fall within the definition of “useful article.”  The Copyright Office followed the Third Circuit’s lead, and advised that, “since masks generally portray their own appearance, this subject matter appears to fall outside the definition of ‘useful article.’”

  1. Halloween Serial Killer Michael Meyers is really William Shatner

One more thing to remember about masks. Even though they are not useful articles and may qualify for copyright protection, they still have to be original enought to get that protection. In Don Post Studios v. Cinema Secrets, another Eastern District of Pennsylvania case, the makers of the Halloween movies were sued by the guy that created that creepy mask worn by deranged killer Michael Myers. The mask maker claimed that his creation was protected by copyright, but the Court rejected this argument, in part because the mask was just a mold of actor William Shatner’s head (originally created by the plaintiff for a Captain Kirk mask), and therefore it was not a sufficiently original work of authorship.

  1. Separability and the Disappearing Compendium Passage

Even though costumes as a whole are useful articles, the individual components of a costume can still merit copyright protection if they are physically or conceptually separable from the utilitarian aspects of the costume. For example, in Chosun International v. Chrisha Creations, the maker of animal costumes for children, featuring plush sculpted hoods and sleeves shaped like paws, sued a competitor for using the same design. The Second Circuit held that, although the costumes were useful articles, the head and paws may be separable:

It might, for example, be the case that the sculpted “heads” of these designs are physically separable from the overall costume, in that they could be removed from the costume without adversely impacting the wearer’s ability to cover his or her body. Similarly, it could be that the sculpted “heads” (and perhaps “hands”) are conceptually separable. That is, Chosun may be able to show that they invoke in the viewer a concept separate from that of the costume’s “clothing” function, and that their addition to the costume was not motivated by a desire to enhance the costume’s functionality qua clothing.

Beware, however, because Copyright Office’s test for Halloween costume separability may be in flux.  In the 2014 version of the Copyright Compendium, the Copyright Office included a whole section on costumes (Section 924.3(A)(2)), which was based on the case law up to that point and provided an example similar to the Chosun case. However, in April 2017, the Supreme Court issued its opinion in Star Athletica v. Varsity Brands, which contained a new articulation of the separability analysis as applied to cheerleader uniforms (you can read about that case on our blog here). When a new version of the Copyright Compendium came out a few months later, the costume section had disappeared, replaced by a holding statement promising updated guidance in the wake of the Supreme Court decision.

  1. Sadly, the Banana Case Settled

We copyright nerds got super excited about a month ago when costume maker Rasta Imposta sued Kmart in the District of New Jersey for over an alleged “knock-off” banana costume. (I was especially excited, because I was wearing banana costumes                before they were cool.)

So many questions could have been answered by this case. What is the impact of Star Athletica on costume copyrights? Is the banana shape separable from the utilitarian costume or is it just a piece of clothing?  What about Judge Posner’s 2012 dicta in the Banana Lady case, in which he expressed doubt “about the validity of [a banana costume] copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product.”

Sadly, we may never find out the answers to these questions, because the case settled earlier this month, just in time for Halloween.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact
more
less

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.