Is your Halloween costume infringing a copyright?

Halloween is one of the most popular festivities of the calendar, and is now becoming a must even in China. People call it 万圣节 (wànshèngjié), they use pumpkins to carve all kinds of funny faces and shapes to ward off evil spirits.

As all the people around the world, also Chinese dress up with scary costumes: beside DIY ghosts, witches, monsters and zombies, the festivity is a way to wear any kind of costumes, and you can easily find them online even at a very reasonable price.

But… Have you ever wondered if you’re actually allowed to dress like, let’s say, Cruella? How can you be sure you’re not infringing some intellectual property, just wearing a Halloween costume?

Believe it or not, there has previously been litigation on this matter. Costume companies have sued each other for copyright infringement for stealing the ideas and designs of a competitor.

Typically, the nature of a costume is 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. Features that are original works of art can be “conceptually separated” from the overall design of a costume and offer copyright protection.

Let’s make an example.

Assuming it is not entirely functional and has particular design features, does Wonder Woman costume infringe the rights of Marvel?

First, there is the issue of fair use. Unless you intend to mass produce and sell your costume to others, you are unlikely to draw the attention of the copyright owner.

Then, those that should be concerned with these various intellectual property rights are costume manufacturers and shops.

These costume shops should have 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, and the licenses would almost certainly extend to the purchaser and user of any costumes they sell – which means that a Spiderman, Batman, Wonder Woman and whatever superhero costume, as well as other famous character, should be covered by a series of licenses prior to people ever purchase the costume.

Anyway, some costume makers still skirt around the copyright laws.

You can find a Beauty Princess dress quite similar to the one of the original movie (but with no beast), a Groovy Man kit that makes you look like the more famous Austin Power, a Fighter Jet Pilot costume for you to play as Tom Cruise in Top Gun, a Renaissance Queen if you are a fan of Alice in Wonderland, an Evil Midweek Cutie if you like to dress up like Wednesday Addams.

As you see, they can’t exactly use the real names behind the characters. Why? Easy answer: intellectual property! All those famous characters are either protected by trademarks and copyrights (or both).

And if you look at original merchandise, you know now why they sell their costumes at a more premium price - this is because they either come from the makers themselves (like Marvel) or they bought a license to the trademark, allowing them to legally sell products with the name of the actual character.

So, you don't have to worry when you make your own Halloween costume; but if you are planning to start a Halloween costume business, and maybe invent a new character, it may be a great treat to get your brand trademarked.

Call us, we can help you!

_{Cover photo: Nong V on Unspslash}