In general, there is no copyright protection for the shape of clothing, and that includes many costumes. In copyright law, “useful articles” don’t get copyright protection because they are considered functional, rather than aesthetic. This means nobody can own a copyright in something like the shape of an automobile or a television set.
However, courts have ruled that individual components of a costume can be copyrighted if they are distinct enough from the utilitarian nature of the costume. For example, one court held that the head and paws on children’s lion costumes may be separable and entitled to copyright protection.
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A banana costume may seem like a simple “useful article”, but costumes pull in so much money during Halloween that companies have gone to court over them. Americans are expected to spend $9.1 billion on Halloween-related items this year, including $3.4 billion on costumes!
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A company called Rasta Imposta first began selling its banana costume in 2001 and received a copyright registration in 2010. The company licenses out the design and considers the banana “one of the company’s most important costumes.”
Kmart used to purchase costumes from Rasta Imposta, but recently began using “another vendor”. Rasta Imposta then discovered that Kmart had begun offering an “infringing costume,” which it alleges is a direct replication and knockoff of Rasta Imposta’s copyrighted Banana Design. Rasta Imposta sued Kmart Corp. and Sears, alleging copyright infringement, trade dress infringement, and unfair competition.
Image Source: trademarkandcopyrightlawblog.com
How different do banana suits really have to be to avoid an intellectual property fight? “It’s not that the subject has to be original,” explained trademark lawyer Sonia Lakhany. “It’s that the expression of that subject is original. … There are many, many ways to showcase the same object in an artistic medium.” Unfortunately, the Rasta Imposta v. Kmart case settled earlier this month, so we won’t have any new rulings from the case.
Halloween masks, as opposed to body costumes, are not useful articles. The Copyright Office has advised that, “since masks generally portray their own appearance, this subject matter appears to fall outside the definition of ‘useful article.’” However, masks still have to be original enough to warrant copyright protection. For example, in one court case in the Eastern District of Pennsylvania the makers of the Halloween movies were sued by the person who created the creepy mask worn by killer Michael Myers. But the court held that since the mask was just a mold of actor William Shatner’s head, it was not original enough to merit copyright protection. Yes, Michael Myers = William Shatner.
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Of course, certain Halloween costumes are definitely entitled to copyright or trademark protection, such as those based on TV or movie characters or other famous celebrities. But costume makers still skirt around the copyright laws.
What’s the best Halloween costume you’ve seen?
I honestly remember seeing banana costumes in the 90’s when I was in college and they’ve probably been around for longer. If Rasta began selling in 2001 and applied for copyright somewhere before 2010, couldn’t the companies that sold those banana costumes before them disputed their claim? Wouldn’t proof of profiting off of sales before Rasta came around, make a stronger case if they tried to dispute it?