How Copyright Has Shaped Halloween

One of the longest-running jokes about Halloween is that costume companies will rip off a well-known character, tweak the costume, and package it under a different name to avoid a lawsuit.

According to the joke, it is legal because clothing design enjoys very limited copyright protection. As such, it’s completely legal to sell a costume based on an iconic character so long as you avoid trademarked names and other elements. This has led to some comical moments. It’s why stores carry “Black Hero” and not Batman, “Bad Toy” instead of Chucky and so forth. 

However, that is not exactly true. At least, it’s not the whole truth.

The characters that wear those clothes are protected by both copyright and trademark law. Though each costume must be examined separately, if you use copyrighted elements or mislead customers into thinking your costume is in some way connected to the character, rightsholders could likely sue and win. 

Courts have agreed with this. In 2019, the Third Circuit found that a banana costume had enough separating it from “useful article’ that it qualified for copyright protection. That was based on a 2017 Supreme Court decision that found cheerleader uniforms enjoyed a similar level of protection. 

So, why don’t we see more lawsuits in this space? Why aren’t the movie companies raining litigation down on costume makers and haunted attractions? The answer is actually pretty simple: It’s not worth it.

For all the love I have of Halloween, it’s just not a big concern for the big rightsholders, and that isn’t likely to change any time soon.

But that doesn’t mean copyright hasn’t shaped Halloween. It’s that it’s done it less directly.

A Small Industry

Though many believe that Halloween is the second-biggest holiday of the year, that’s not the case. When looking at consumer spending, it is behind all the winter holidays, Valentine’s Day, Easter and both Mother’s and Father’s Day.

The haunted attraction industry, a staple of the holiday, generates an average of $1 billion per year. While that’s an impressive number, three 2024 films earned more revenue at the box office than the entire industry. Those include Inside Out 2, Deadpool & Wolverine and  Moana 2.

For all of the candy, costumes and decorations, Halloween is still a relatively small industry. That, in turn, may be what protects it from litigation. 

If you go to your local haunted attraction, even a major one, you are likely to see copyright and trademark-protected characters that the haunt did not license. Theoretically, the movie studios could file lawsuits, especially since they often have official haunted attractions. 

However, the calculus simply doesn’t work out. The harm done by such appearances and the potential damages won don’t make up for the costs of filing the lawsuit and the potential for bad publicity. 

To make matters worse, these lawsuits would have to wade into complex topics. What elements of Pennywise are protectable? Was the use a fair use? Was there actual customer confusion? Did the haunt even benefit from the character being there if it wasn’t used in advertising? 

Because of these challenges, haunted attractions continue to feature unauthorized versions of Pennywise, Freddie, Jason, Michael Myers, and others. 

This is less true for other holidays, in particular Christmas. For example, in 2023, Dr. Seuss Enterprises targeted photographers offering unauthorized Grinch photoshoots. 

To be clear, this doesn’t mean that lawsuits or legal threats never happen during the spooky season. As we discussed last year, there has been a fair amount of litigation over Halloween masks. However, the smaller scale of Halloween makes legal wrangling much less common.

But that doesn’t mean copyright hasn’t played a crucial role in shaping the holiday.

So, Where Does it Matter?

Just because Halloween isn’t a big target for legal threats doesn’t mean that copyright hasn’t played a major part in how we celebrate the holiday.

Much of how we celebrate Halloween centers on copyright-protected works. This includes books, films, music and more. As we discussed in 2016 with the Rocky Horror Picture Show, this impacts when, where and how these works can be copied, distributed, publicly played/performed, etc.

But much of that is relatively mundane, at least as far as copyright goes. But there are some unusual examples of copyright having an outsized impact. 

One example is how the film Night of the Living Dead accidentally lapsed into the public domain. While this was a tragedy for the filmmakers, it gave rise to the modern zombie genre. 

Similarly, a (failed) attempt to avoid a copyright lawsuit from the Bram Stoker estate caused the original Nosferatu to be nearly lost forever. However, many of the changes made in that film ended up becoming key parts of modern vampire lore. 

Finally, Universal Studios’ 1931 film Frankenstein has become so popular and so associated with the story that many depictions of Frankenstein’s monster are copyright infringements, even though the original book was written in 1816. The original Universal film will enter the public domain on January 1, 2027.

So, even though copyright has shaped Halloween, it’s been in more subtle ways. Though that could change if Halloween becomes a bigger holiday financially, right now it’s a holiday with a lot of social cache but not as many reasons to go to court.

Bottom Line

From a copyright standpoint, the best holiday to compare Halloween to is Christmas. They are both a mix of old and new traditions, creating a patchwork of public domain and copyright-protected works central to the holiday.

They both have had their traditions shaped by odd copyright stories and have tons of media targeted at them. 

The biggest difference is that Christmas is far more lucrative. Financially, it’s a holiday many times the size of Halloween. Legal attention tends to flow where the money does, so it makes sense that other holidays would receive more legal attention.

But it’s important to remember that it can change in a heartbeat. If the haunted attraction industry gets bigger or costume licensing becomes more lucrative, we could see a major shift with almost no warning.

As such, my advice is never to let a lack of enforcement make you feel safe about violating copyright or trademark laws. Just because there has been no enforcement in the past doesn’t mean there won’t be tomorrow. 

Because Halloween may be a small holiday, at least commercially, it is growing. How long until the calculus changes? That’s impossible to say.