Halloween is just around the corner which means all across the country people are buying, selling, and creating at home a multitude of costumes, from the new Stars Wars: The Force Awakens characters to whatever this is. But, does dressing up as your favorite TV, movie, or comic book character infringe the author or studio’s copyrights? Historically, no. Costumes, like other articles of clothing, would typically fall under the “useful article” exception of 17 U.S.C. § 101. However, the Star Athletica v. Varsity Brands case may change all of that, and it is slated for oral argument on Halloween.

Any two- or three-dimensional “pictorial, graphical, or sculptural” design is copyrightable under § 101. However, clothing items, being useful for covering the body, fall under the “useful article” exception and their design elements are only copyrightable if they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. Courts struggle to determine what sorts of designs can be separated from the utility of an article. Star Athletica seeks to resolve this issue, as the petitioner identifies no less than ten different tests that federal courts have used in trying to determine when a design is separable from utility. The case centers on several cheerleading uniform designs which were allegedly copied by Star Athletica. Varsity Brands submitted the designs to the Copyright Office, which, after several rejections, granted it a copyright to the chevron and color block designs of several of the uniforms. Star Athletica attempted to use similar designs and Star Athletica brought suit. Finding that the designs were not separable from the utility of the uniform, the district court held the copyright unenforceable. On appeal, however, the Sixth Circuit gave Skidmore deference to the Copyright Office and held that the designs were separable from the utility of covering the body, wicking away sweat, and withstanding athletic movement, and Star Athletica could enforce its copyright.

Whether the simple designs of a cheerleading uniform are copyrightable could have an impact on more elaborate costumes such as those worn for Halloween and Comic Cons around the country.  The Copyright Office has longstanding policy precluding fanciful costumes from being copyrighted, although, masks can be.  Power Rangers LLC has sued multiple parties seeking to prevent the sale of full body morph suits in the style of a power ranger to little success. However, using with the Sixth Circuit’s test, if the creator was able to get a copyright for the character in question, which is likely if there are pictorial depictions in books, comics, or video productions, they would likely be able to have success pursuing infringing costumes. Public Knowledge’s amici brief filed in the Star Athletica case highlights this issue. If an individual throws on a tan shirt and black vest creating their own last minute Han Solo costume, goes trick or treating, and goes home, there would likely be no issue. A concern comes when people create detailed costumes attempting to be as true to the character as possible, and then images of them get posted on the internet where advertising revenue of the costume creator’s website or another site like Facebook, Instagram, or Twitter enters into play. Would the costume’s creator be able to be sued by the rights holder? If at a comic convention, the promoters of the event? Facebook or Youtube? Depending on the outcome of Star Athletica, do-it-yourself costume makers could be hit with lawsuits.

There is an underlying economic question of whether copyright holders would want to pursue these types of claims, potentially alienating fans, but if deeper pockets such as the convention organizers or large technology companies could be liable for infringement, they might pursue those claims creating issues for content delivery companies as well as the users posting the possibly infringing material who could be prevented from sharing their love of a character or story. Fittingly, Star Athletica is set for oral argument on Halloween, so more clarity on this nebulous issue hopefully will be outlined soon enough.

–David Clark

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