Each year, tens of millions of individuals and families around the United States participate in annual Halloween celebrations and events. Dressing up as their favorite superhero, monster, villain, or outer space alien is all part of the excitement, but will the treat of the season be spoiled by the trick of a copyright or trademark infringement lawsuit?
Are Costumes Eligible for Copyright Protection?
Generally, copyright protection is not available to protect articles that serve a utilitarian purpose for the wearer. Useful articles, such as costumes, provides the intrinsic utilitarian function of providing clothing, rather than merely portraying the appearance of the article or conveying information.  However, limited protection may be acquired “only if, and only to the extent that such designs incorporate pictorial, graphic, or sculptural features,” and that the designs exist independently of the utilitarian aspect of the costume. 
Because Halloween costumes “enable the wearer to masquerade” as their favorite character, the artistic elements of the costume cannot be separated from the costume’s utilitarian aspect of being an article of clothing.  The artistic design of each individual Halloween costume is influenced “significantly and materially” by the costume’s utility, such that the costume portrays the wearer as their selected character. As a result, Halloween costumes generally do not qualify for copyright protection under the Copyright Act because they are useful articles. 
What About Individual Design Elements of the Costume?
While Halloween costumes are generally not eligible for copyright protection, individual design elements of the costumes may be “afforded some level of protection . . . so long as those design elements are physically or conceptually separable from the article itself” and are not significantly influenced by the costume’s utility, as previously mentioned. 
In 2017, the Supreme Court of the United States in Star Athletica used a two-factor test to determine copyright protection for a useful article.  In essence, the feature may be afforded some level of copyright protection if it (1) “can be perceived as a two- or three-dimensional work of art separate from the useful article” and (2) is a pictorial, graphic, or sculptural work.  Thus, when designs on their own are copyrightable and are merely reproduced on a useful article, such as an artistic chevron sewn into a uniform, the designs are themselves copyrightable independent of the useful article.  For example, a court held that the head and paws of an animal costume may be separable despite the costume as a whole being a useful article for clothing.  Other famous designs, such as Wonder Woman’s stylized “W” or Superman’s stylized “S” that are typically observed in conjunction with their costumes, are capable of standing alone and are merely reproduced onto the character's costume. Thus, replicating these designs may constitute copyright infringement.
Do Halloween Masks Serve the Same Utilitarian Purpose As Well?
While Halloween costumes are generally considered useful articles, courts have held that Halloween masks are not.  In Masquerade, masks designed to resemble animals, such as pigs and elephants, were held to be copyrightable.  The court held that, because masks derive their utility from the mask’s appearance, the masks are not considered useful articles.  When the function of a mask is “merely to portray the appearance” of something, such as a pig’s nose, the mask is not considered a useful article since the mask portrays its own appearance and is, therefore, eligible for copyright protection. However, while masks may be eligible for copyright registration, they must still possess original concepts and have a minimal level of creativity required to obtain copyright protection under the Copyright Act.
What About My Costume’s Accessories and Props?
Similar to masks, the accessories and props associated with costumes generally may be eligible for copyright protection. For example, swords are separable from the utilitarian aspects of the costumes and may be considered sculptural works. Other examples may include items such as armor, replica weapons, jewelry, and other items typically associated with popular Halloween characters.
But Wait, Isn’t My Costume Considered Fair Use?
Courts use a four-factor test to determine if the use of a copyrighted work is “fair use.”  These elements include:
(1) The purpose and character of the use;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion taken; and
(4) The potential effect of the use upon the market for the original.
A determination of fair use is performed on a case by case basis and the court looks to whether individuals borrow the copyrighted work in a limited and transformative way. For example, a court is much more likely to find that trick or treaters who make their own costumes at home would constitute fair use, while professional businesses attempting to commercialize the copyrighted work and pierce into the creator’s marketplace may not be seen as fair users.
In addition, parodies of copyrighted works are also considered to be fair use. Transforming a copyrighted work into, for example, a zombie version of Mickey Mouse represents a deliberate exaggeration for comedic effect. Such a parody stands a good chance at receiving a favorable fair use opinion.
Sale, Advertisement, and Potential Trademark Infringement
In addition to potential copyright issues, the commercial sale or advertising of costumes may pose risks for businesses under trademark law. In 2008, the Walt Disney Company brought a federal trademark infringement suit against a Clermont, Florida company for advertising costumes that resembled Disney’s characters Tigger and Eeyore, for which Disney had obtained trademark registrations. 
Disney’s original demand letter included a list of 7 demands; the Florida company complied with all but one of the demands; however, instead of sending the costumes to Disney for destruction, the Florida company returned the costumes to their original eBay seller for a refund. This prompted Disney to file the lawsuit and seek 1 million in damages plus legal fees. As a result, Disney and the Defendant entered into a settlement agreement and a permanent injection was issued.
Halloween is a fun, spooky, and popular time of the year for children and adults of all ages. Whether you’re dressing up as your own version of a pirate or a zombie droid, it is important to recognize the potential copyright and trademark issues that may arise. While most costumes and props this Halloween season will be considered fair use, it is important to consult an experienced intellectual property attorney if you have any questions or concerns about your chosen Halloween outfit.
 17 U.S.C. 101.
 Whimsicality, Inc. v. Rubie's Costumes Co., 721 F. Supp. 1566, 1572-76 (EDNY.)
 Chosun International, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324 (2d. Cir. 2005). See, e.g., Brandir Int'l, Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142, 1145 (2d Cir. 1987); Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411, 418 (2d Cir. 1985); Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir. 1980).
 Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).
 Chosun International, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324 (2d. Cir. 2005).
 Masquerade Novelty v. Unique Industries, 912 F.2d 663 (3d Cir. 1990).
 17 U.S.C. 107
 DISNEY ENTERPRISES, INC., Plaintiff, v. KOOL KLOWN PARTY PEOPLE, INC., David F. ChaveCo, and Marisol Perez-chaveco, Defendants.
2008 WL 5749569