[originally published on October 28, 2015 at www.law-dlc.com]
Halloween is on a Saturday this year. I am anxious to see people of all ages walking around in full costume. What a wonderful time of year. Halloween is fun – and it brings out the creative side in almost everyone. People will be dressed as superheroes, villains, cartoon characters, pop culture icons, scary monsters, and more. But most of these costumes you will see represent characters that were created by someone else.
Is your Halloween costume infringing someone else’s intellectual property rights?
Believe it or not, there has previously been litigation on this matter. Costume companies have sued each other for copyright infringement for allegedly stealing the ideas and designs of a competitor. Typically, the nature of a costume is considered by the Copyright Act to be a “useful article” as clothing and thus is functional and not protected as a copyright. There are exceptions however for the elements of design within a costume. Particular features that are original works of art can be “conceptually separated” from the overall design of a costume and afforded copyright protection.
Case Law Precedent
In the Chosun case from 2005, the costumes at issue were predominantly animal-themed children’s costumes, with one particular model having a bodysuit and a “sculpted hood.” Some of these costume designs also included hands or claws connected to the cuffs of the bodysuit to give the appearance of a particular animal. The plaintiff in that case sued a competitor on allegations that it “slavishly copied” this specific costume design feature. These claims brought to life the issue of whether particular features, designs, or accessories to a costume can be protected as an original work of authorship that is not subject to the “useful article” exception.
Initially, the district court in Chosun followed precedent and held as a matter of law that Halloween costumes were not eligible for protection under the Copyright Act. The court, however, did leave room for individual design elements to be protected as copyrights, “so long as those design elements are physically or conceptually separable from the article itself.” Subsequent to the Chosun case, there was also a dispute regarding “Power Rangers” costumes and designs. That case was SCG Power Rangers, LLC v. Underdog Endeavors, Inc., CV11-08485 JHN (C.D. Cal. 2011), but it never reached a published decision from the court. There the plaintiff accused the owner of the website MyPartyShirt.com of selling infringing costumes using the Power Rangers characters and uniform designs. Since this theoretically addressed not just a costume but also copyrighted characters from a television show, the plaintiff essentially sought to expand the scope of copyright protection in a Halloween-style costume.
Meanwhile, there is even a 1991 published statement from the United States Copyright Office on the matter, precluding the totality of a costume from copyright protection, but allowing for “elements” of a costume to be copyrighted if it satisfies physical or conceptual separability.
Copyright Law Standards
Copyright law has long distinguished between functional items and the aesthetical designs that may appear on an otherwise functional “useful article.” Accordingly, anyone claiming infringement of a costume design necessarily must distinguish features of the design from the inherent nature of a costume as clothing.
What about your particular costume? Assuming it is not entirely functional and has particular design features, does your superhero costume infringe the rights of Marvel?
Most likely – you are in the clear. Most likely.
First, there is the issue of fair use. An individual making a Halloween costume is not necessarily using it for criticism, commentary, news reporting or teaching purposes, but the use is essentially for entertainment and personal use only. Unless you intend to mass produce and sell your costume to others, you are unlikely to draw the attention of the copyright owner. But the “fair use” factors set forth by 17 U.S.C. § 107 may not actually apply here.
Additionally, there are almost certainly licenses in place. Most costumes are bought from specialty stores or online through manufacturers that specialize in Halloween costumes. Without knowing the particular details of any transaction, it is almost a certainty that each of these costume shops has acquired the necessary licenses from the copyright owner for the make, use and sale of any costumes (and copyrighted designs) that are associated with well-known characters, particularly comic book superheroes and villains that are the basis for popular children’s costumes. These licenses would almost certainly extent to the purchaser and user of any costumes they sell – which means your Spiderman costume is covered by a series of licenses prior to you ever purchasing the costume. You are good to go.
That said – copyright law is not the be-all, end-all on this topic. There are additional issues that may arise based on your particular choice of sartorial selection for Halloween.
Trademarks and Costumes
Unlike copyright law, a trademark owner has an affirmative duty to police against the unauthorized use of trademarks by a third party. For example, advertising a Halloween party at a public restaurant with a specific “Harry Potter” theme has drawn the attention of Warner and cease-and-desist letters issued almost immediately. This is because the restaurant would presumably be using the theme to draw customers and attention, and effectively profiting from the use of the name of a popular character and storylines.
Trademark law can affect many things relating to Halloween. Any public entity, such as a bar or restaurant, can run afoul of trademark law by promoting certain themes, including the use of decorations and “atmosphere” – as this may violate the trademark rights of another, including the publicity rights of famous individuals. The Lanham Act protects against the unauthorized use of an image or likeness by others.
How does the Lanham Act extend to a costume though? In 2010, the Hebrew University foundation alleged that Albert Einstein’s name, image and likeness violated Einstein’s right of publicity under New Jersey law. The manufacturer sued in federal court seeking a declaratory judgment that it was not violating any rights. The estate’s claims extended to all uses of Einstein’s image in a “Heroes in Disguise” costume kit that was being offered for sale publicly. Based on the publicity rights statutes in most states, if the costume used Einstein’s likeness or image without the permission or authority of his estate, it could run afoul of state law or the Lanham Act. This particular case appears to have been resolved out of court as well, most likely through a license granted to the manufacturer in exchange for monetary compensation.
The takeaway is that particular characters and images may have intellectual property rights beyond just copyrights. It can also fall under the umbrella of a trademark or trade dress, which would require permission to use or a separate license issued by the trademark owner.
Patents and Design Patents
What about patents? Certainly a costume cannot be considered a useful “invention” subject to the patent laws of the United States. Would you believe that the United States Patent and Trademark Office has issued a patent for a Halloween costume? You should, because it has.
U.S. Patent No. 6,904,612B2 issued in 2002 for a “Weather and climate adaptive Halloween costume.” Yes, someone owns an actual patent for a costume. The patent comprises “several garment member portions” designed to adapt to changing weather conditions in most any climate or geographical location. This limits the scope of novelty and is unlikely to be something your elaborate costume design will infringe. Notably, this patent was assigned to Chosun International – the same company at issue in the recent copyright case on costumes.
There is also the concept of a “design patent” which protects “any new, original and ornamental design for an article of manufacture” under United States law. The owner of a design patent could claim exclusive rights in a particular design for fourteen (14) years from the date the patent is granted. Design patents are strongly analogous to copyrights in this regard – as it would only cover unique and original designs separate and apart from any functional characteristics of a costume. Once again it is unlikely that your subversive costume mocking a television character will run afoul of a design patent, but the possibility does exist. Batman does have a lot of toys after all. Ornamental or not.
In short, your Halloween costume is almost certainly not considered to be an infringement of copyrights, trademarks or patents according to current U.S. law. Those that should be concerned with these various intellectual property rights are costume manufacturers and public entities such as bars and restaurants that may seek to host a costume party based on a particular “theme” that may be subject to trademark or copyright protection. Beyond that — dress up, eat all the candy (candy corn does not count) and most of all have fun!
 Chosun Int’l v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005).
 17 U.S.C. § 101 et seq.
 413 F.3d at 326. See also Whimsicality, Inc. v. Rubie’s Costumes Co., 721 F. Supp. 2d 1566 (E.D.N.Y. 1989); Whimsicality, Inc. v. Battat, 27 F. Supp. 2d 456 (S.D.N.Y. 1998).
 413 F.3d at 326. See also Brandir Int’l, Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142, 1145 (2d Cir. 1987); Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411, 418 (2d Cir. 1985); Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir. 1980).
 The case did not reach a published opinion and likely settled out of court prior to any official decision.
United States Copyright Office Policy Decision: Registrability of Costume Designs, 56 Fed. Reg. 56530, 56532 (1991).
 Mazer v. Stein, 347 U.S. 201 (1954).
 http://www.theguardian.com/lifeandstyle/wordofmouth/2009/oct/26/harry-potter-halloween-warner-lawyers (yes, this took place in England, but the same concept applies here).
 Forum Novelties, Inc. v. Greenlight, LLC et al., 10 Civ. 9414 (S.D.N.Y. December 17, 2010).
 35 U.S.C. § 171.