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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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October 31, 2003

Independent Creation, the "Halloween" Mask and Classic Movie Makeup

Posted by Ernest Miller

Perhaps some of the most famous copyrights this time of year are the copyrights for the designs of the classic Universal Studios Monsters (Frankenstein’s Monster, Bride of Frankenstein, The Wolf Man, Dracula, The Mummy, Phantom of the Opera and the Creature of the Black Lagoon), which were created by Jack Pierce. Sometimes, of course, copyright doesn't lead to lawsuits, but inspires alternate creation, such as the more "realistic" design of Frankenstein's Monster in the Hammer Films classic The Curse of Frankenstein.

However, such outcomes aren't always the case. Even something as simple as the everyman "Michael Myers Mask" used in the original "Halloween" movie has had its share of controversy.

In Don Post Studios, Inc. v. Cinema Secrets, Inc. [PDF], which was decided in 2000, a strange sort of independent creation case took place. Don Post Studios, who had designed the mask used in the 1978 movie (for a payment of $150), was marketing a similar mask to the public under their own auspices. Cinema Secrets, a major supplier of Halloween masks and such, had licensed the mask design from the makers of the movie, and was marketing their version to the public. Don Post sued for copyright infringment (among other things), claiming that Cinema Secrets had copied the Don Post mask. Cinema Secrets won the copyright issues on a claim of independent creation (among other things): Cinema Studios' mask was based on the movie, not the Don Post mask. The winning claim brings a whole new meaning to the term "independent creation."

Interesting fact: the infamous mask used in the movie was a modified version of a "Captain Kirk" mask based on a foam master of William Shatner's head. Scary, indeed.

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