Holidays are no stranger to copyright laws, and Halloween is no exception. Costumes are by far the biggest issue that people face when it comes to intellectual property laws. People want to dress up as their favorite characters, but the studios who produced the movies or shows have them copyrighted.
In the 1980s, when litigation for pirating costumes began, the courts used the useful article doctrine in the Copyright Act as their guide for how to handle these cases. The Copyright Act defines useful articles 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 are not protected under copyright laws, which means you cannot copyright the shape of a phone or car; it also means you cannot copyright the shape of clothing, including costumes.
In 1991, when the Copyright Office issued a Policy Decision on the Registrability of Costume Designs, that said costumes will be treated as useful articles, and are not under copyright protection because they “serve a dual purpose of clothing the body and portraying their appearance.”
Masks Make Things Complicated
Masks, however, are not considered to be useful articles. A 1990 case that was brought to the Third Circuit said that masks were intended “merely to portray the appearance” of something, so they were no considered useful articles. The Copyright Office agreed with this decision and said that “since masks generally portray their own appearance, this subject matter appears to fall outside the definition of ‘useful article.'”
However, masks have to be original enough to get copyright protection. In Don Post Studios v. Cinema Secrets, the makers of the “Halloween” movies were sued by the person who created the mask Michael Myers wears. The mask maker said this was his creation and should be protected under copyright laws, but the court ruled against him because the mask was made with a mold for a William Shatner mask, so it was not original enough to be protected under copyright laws.
Litigation Over Costumes
While the entire costume is not subject to copyright laws, the individual parts of the costume can be protected, if they are separable from the utilitarian aspects of the costume. In one case, the maker of children’s animal costumes with plush sculpted hoods and sleeves that were shaped like paws sued their competitor for using the design. The Second Circuit ruled that the head and paws are conceptually separable from the rest of the costume, allowing them copyright protection.
A 1989 case ruled that a children’s costume that was in the shape of a pumpkin was a useful article since it is clothing.
In the late 90s, the creator of “Barney and Friends” threatened to sue over 700 costume shops for selling costumes that resembled the characters on the show. One shop had to pay $100,000 for renting a purple dinosaur costume that resembled Barney.
When selling costumes that resemble celebrities, the right of publicity may come into question. However, parody laws may be applicable to this situation. The copyright owner for images of Albert Einstein threatened to sue a company selling Einstein disguise kits.
Fictional Characters Complicate Copyright Protections
To further complicate Halloween’s relationship with copyright laws, fictional characters that are in an original work of authorship, like a book or movie, are not presumed to be protected by copyright laws, they may be protected independently from their original work if they are unique and distinctive enough.
Your favorite movie character, whether it is Michael Myers or Cinderella, may still be considered protected under the Copyright Act. However, there are horror characters who are in the public domain that you can dress up as and avoid copyright infringement. Dracula, Frankenstein’s Monster, Dr. Jekyll and Mr. Hyde, Ichabod Crane, and the Wicked Witch of the West are all in the public domain, so you can use them without risking violating copyright laws.
Halloween can be a confusing time for copyright protections, especially since by buying a costume of a character who is protected by copyright law implies the license to wear the costume. Unless you are holding a big, public event, the average person may not need to worry about whether their costume is protected by copyright laws. Have fun and enjoy your costume, no matter what it may be.