Understanding Copyright, Trademark and Halloween Costumes

As we’ve discussed in the past, copyright has played an oddly oversized role in our modern Halloween festivities. Whether it’s establishing the modern zombie formula, essentially re-copyrighting Frankenstein’s Monster or nearly killing off one of the most iconic vampires, Halloween and copyright have a long and controversial history together.

However, one of the areas that is generally less talked about is copyright’s impact on Halloween costumes. That is, until photos such as this one begin to make the rounds.

As one can easily see, that is a costume for the character Beetlejuice. However, rather than carrying his famous moniker, the costume company opted for “Juice Demon”, a clear play on the Beetlejuice name. 

Why did the company do this? Why go through the trouble of making the Beetlejuice costume and not put the name on it? If the costume isn’t licensed, why is it not infringing regardless of the name change?

To answer that and other questions about Halloween costumes, we have to step back and look at how copyright and trademark law apply to costumes. With that, we’ll also understand the relatively few ways that your costume could land you in legal trouble.

Copyright and Halloween Costumes

In general, Halloween costumes do not qualify for copyright protection (at least in the United States). Costumes are considered “useful articles” and, similar to most of the fashion industry, does not qualify for any kind of copyright protection. 

However, there are two key exceptions to this. First, design elements that are “physically or conceptually separate” from the article can be protected. For example, if you print a photograph onto a shirt, the photograph is still protected by copyright and doesn’t lose protection just because you put it on a shirt.

This means, theoretically, that elements such as the Superman “S” can be protected by copyright because they are separate elements that are merely copied onto the clothing. 

The second limitation is masks. According to the case Masquerade Novellty v. Unique Industries, the 3rd Circuit Court of Appeals ruled that masks broadly fall outside the “useful article” classification and do qualify for copyright protection. This stance has been adopted by the U.S. Copyright Office

However, that limitation has a limitation of its own. The mask must still have enough requisite creativity as another case, this once involving the iconic Michael Meyes mask, it was ruled that the mask did not have adequate creativity as it was simply a mold of William Shatner’s head painted white.

Masks, in turn, are similar to weapons, accessories and other elements are seen as three-dimensional sculptures, not useful articles.

Bringing us back to our Juice Demon, the elements that are copied include the striped suit and tie. These elements are almost certainly just useful articles and not protectable under copyright. As such, anyone is allowed to sell black and white striped suits. Since the costume doesn’t have a mask or any accessories, from a copyright standpoint, it’s likely not breaking any laws.

However, copyright is only half the picture.

Trademark and Halloween Costumes

The other major part of the question is trademark. Where copyright protects works of creative authorship, such as books, movies, music, etc., trademark protects names, slogans and other things that identify a specific business, product or service.

Popular characters are an interesting overlap between those two areas. Characters are often protected by copyright, even if their fashion is not, but they are also routinely protected by trademark. 

The name Beetlejuice, for example, has multiple registered trademarks related to it including registration number 4863369, which covers the use in “Clothing for men, women and children…”

Trademark infringement, however, isn’t like copyright. Trademark isn’t interested in the copying of the mark, but whether the use of the mark causes confusion in the marketplace. As such, I am allowed to discuss Beetlejuice in this article, but I cannot launch a line of Beetlejuice-labeled clothing without committing infringement.

This, in turn, is why our knockoff Beetlejuice is named “Juice Demon”. Though an argument can be made that the company is already causing confusion by selling such a similar costume (Disney made this argument in 2008 when it sued and later settled with a costume company selling costumes similar to Disney characters), it would be considerably worse if they used the name Beetlejuice.

In short, Juice Demon is Juice Demon because he can’t be Beetlejuice, not without a license. 

However, selling Beetlejuice costumes isn’t the only way one can find trouble with Halloween costumes.  Even if it is, perhaps, the easiest.

Intellectual Property Trouble from Costumes

For the most part, these issues of copyright and trademark are only really relevant to those that make and sell costumes. Homemade costumes rarely run into any issues (no matter how elaborate) as both rightsholders and the law are focused on business uses.

Besides, even if a rightsholder did decide to target such home uses (which would likely be against their self-interest), it is almost certain that it would be found to be a fair use. 

However, commercial use of costumes still raises legal questions. This primarily includes three groups of people: Those who sell costume elements on sites such as Etsy, those that use costumes in advertising or promotion and those that operated haunted attractions.

Simply owning a costume doesn’t mean that you own the copyright to the character or the trademark to their name and appearance. Using characters and costumes in a way that implies a relationship that doesn’t exist or otherwise causes confusion in the marketplace could create problems. The same is true for creating new works based on that costume, such as using it in a film or TV commercial.

Lawsuits around these particular issues are rare and the disputes that do arise typically are handled through cease and desist letters or takedown notices. However, it’s important to be careful to not use Halloween costumes in a commercial capacity, especially in one where a rightsholder might feel you’ve violated their trademark or copyright.

If you’re unclear on whether a use is permissible, it’s important to talk to an attorney and get proper legal advice. 

Bottom Line

Halloween costumes sit at an interesting and muddled intersection between copyright and trademark law. They are part fashion, part artwork, part branding and part character. 

It’s honestly remarkable that there haven’t been more legal issues in this space, especially considering the lucrative market for licensed costumes.

This isn’t to say there’s been no litigation in this area. In addition to the cases mentioned above, we’ve also seen lawsuits over similar banana costumes and similar bear paws, but those cases deal with similar costumes of items that exist in reality, not copyright-protected characters.

Still, it’s worth being caution when using copyright and trademark protected costumes, especially in any commercial capacity.

The only thing more frightening than the spooks and scares of Halloween are legal threats and lawsuits that can potentially follow it.

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