Happy Halloween! I’ve always loved Halloween; it might be my favorite holiday. Not only do I love the costumes, decorations, and candy, it’s also close to my birthday. I’m definitely a Halloween person.
Adding to my love of the holiday was the fact one of my earlier jobs as a lawyer was working for a retailer of Halloween costumes and décor. Not only was it a fun job, but it also provided a crash-course on the outer limits of intellectual property law. As many people are aware, knock off costumes – unlicensed costumes resembling popular characters – are abundant. Knock offs are abundant for a few reasons. First, some costume manufacturers cannot afford the licensing fees but still want to capitalize on a recent trend or fad. Second, sometimes a license for a particular property might not be available, either due to poor planning by the licensor, choice, or unforeseen popularity. And third, if done correctly knock-off costumes are legal under copyright law.
Knock-offs can be legal because copyright law does not protect functional designs. If a design is important to the actual purpose and operation of the good, then it’s not protected by copyright. (Patent protection for elements of clothing is possible, but will not be discussed here.) Therefore, clothes are generally not protected by copyright. However, the designs on the clothing, if distinctive enough, can be protected by copyright. This issue was recently addressed by the U.S. Supreme Court in the Star Athletics case, which I previewed here. So, if a manufacturer can come up with a design evoking a popular character without infringing on any possible copyrightable elements of the costume, then their costume should be legal under copyright law. However, they still must be wary to not run afoul of trademark law, which means they cannot use the character’s name or any related logos associated with the character, and they have to be wary of right of publicity law, meaning they have to be careful about using a famous person’s name or likeness. It can make for some interesting products and descriptions. Below are a few of the more interesting ones I found recently. (Note: affiliate links)
Most of us should be able to guess who this is supposed to be.
A little trickier, but click through the link to see the product description, which makes it obvious and could run them afoul of the rights-holder.
Most of my readers should be able to guess this one.
It's a little harder to find men's costumes skirting this issue, and it's not always obvious. To me, this seems like it's evoking a certain character from a long-running animated sitcom.