Can you copyright a Halloween costume?

The Halloween costume market in north america is big business. It is estimated that consumers in the United States will spend $3.4 billion on Halloween costumes in 2017. Designing those costumes takes a considerable amount of time money and effort. When a company designs a costume that sells well, the company naturally wants to protect that costume design and prevent competitors from copying the design.

If the costume design is new novel and non-obvious it might be possible to gain a patent on the design. But in reality the strict standards that apply to patents prevent costumes from being granted a patent. It is unlikely that a Halloween costume can meet the criteria needed to be granted a patent.

Traditionally a costume design could not be protected by a copyright either. A costume is essentially a piece of clothing, clothing is considered functional and copyright protection does not protect the functional aspects of an object. But a recent supreme court case has blurred the lines on whether clothing can be protected by copyright law. The court ruled in Star Athletica v. Varsity Brands that Varsity Brands isn’t precluded from obtaining copyrights on the patterns it places cheerleader uniforms. In that case the court held that if the graphic designs can be imagined as separate entities eligible for copyright on their own then the fact they also appear integral to the function of the uniform doesn’t matter. The graphic designs on the article are eligible for copyright protection, but the designs must meet all the other factors to be granted copyright protection.

Now Silvertop Associates Inc is attempting to use this supreme court ruling to protect its Halloween costume design. Silvertops Associates does business using the name Rasta Imposta. Rasta Imposta has sold Halloween costumes to Kmart since 2008. Kmart is a large national retail store in the United States, owned by Sears Holdings Corporation. The flag ship Halloween costume that Rasta Imposta sold to Kmart was a banana costume. The costume covers most of the upper body of the wearer so just the face arms and legs are visible. The wearer of the costume looks like a giant yellow banana with arms and legs. It is a relatively well known costume in the United States and many other companies offer similar costumes.

Between 2008 and 2016 Rasta Imposta and Kmart had a relatively good relationship but this year Kmart chose to purchase a banana costume from a competitor of Rasta Imposta. Rasta Imposta sued Kmart in New Jersey federal court for copyright infringement, trade dress infringement, and unfair competition. Rasta Imposta claims that the design of the banana costume Kmart is selling this year is too close to Rasta Imposta’s banana costume design. It should be noted that Rasta Imposta registered the copyright on its banana costume in 2010.

It is up to the courts to make the final determination of whether copyright infringement has occurred or not but Rasta Imposta will likely have a difficult time proving its case. Rasta Imposta’s banana design is a well known costume that is sold by many other company. The costume is essentially solid yellow with some black on the tips. In Star Athletica the designs in question were cheerleader uniforms with lines and patterns, some degree of artistic expression was exerted to create a design, even if that effort was minimal. The supreme court held that if the designs themselves can be separate entities then the designs may be protected by copyright. The “design” on Rasta Imposta’s product is essentially the color yellow. It is unlikely that a court will hold that the color yellow has enough artistic expression to be imagined as a separate entity worth of copyright protection.

Copyright is a complex and evolving set of law. If you have questions about protecting your designs it is best you discuss your concerns with an experienced copyright attorney.