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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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July 01, 2005

2nd Cir. - Elements of Halloween Costumes May Be Copyrightable

Posted by Ernest Miller

The Second Circuit Court of Appeals has declared that elements of Halloween costumes may be copyrightable in a unanimous decision written by the famous Guido Calabresi, former dean of Yale Law School.

This appeal by plaintiff-appellant-cross-appellee Chosun International, Inc. (“Chosun”) poses the question of whether Halloween costumes, in their entirety or in their individual design elements, are eligible for copyright protection under federal law. The district court (Wood, J.) held that they were not. The court ruled that Halloween costumes were “useful” articles and hence not copyrightable under the Copyright Act, 17 U.S.C. § 101 et seq. Accordingly, the court dismissed Chosun’s suit for failure to state a viable copyright infringement claim. See Fed. R. Civ. P. 12(b)(6). Because the district court failed to conduct a separability analysis prior to dismissing Chosun’s complaint, we vacate the district court’s judgment and remand for further proceedings.
Read the 10-page decision: Chosen Int'l Inc. v. Chrisa Creations Ltd. [PDF].

The reasoning followed that in a case involving belt-buckle design:

Thus, in Kieselstein-Cord, 632 F.2d 989 (2d Cir. 1980), we concluded that the plaintiff’s belt buckle designs were copyrightable. Taken as a whole, the belt undeniably was a “useful article” which performed the service of preventing one’s pants from falling down. The ornate buckle design, however, was conceptually separable from that useful “belt” function. The design – which did not enhance the belt’s ability to hold up one’s trousers – could properly be viewed as a sculptural work with independent aesthetic value, and not as an integral element of the belt’s functionality.
This actually seems a fairly straightfoward decision to me, particularly given the procedural posture of the case. I'm pretty sure the Court got it right.

There is actually a surprising number of intellectual property issues involving Halloween costumes. For example, Chosum International was on the other side of a lawsuit that raised similar issues in 2003. BNA's Patent, Trademark & Copyright Journal has a good discussion of the issues involved in the older case (Tiger Costume Is Protectable, But Sales of Similar Costume Can Continue). See also, this patent on weather-resistant Halloween costumes assigned to Chosun: US Patent #6,904,612: Weather and Climate Adaptive Halloween Costume.

via How Appealing

Comments (2) + TrackBacks (0) | Category: Copyright | Halloween


1. Kevin on July 1, 2005 08:40 AM writes...

Aren't ornate design elements of useful articles
the proper subject of design patents?
(Note to the uninformed: design patents are
distinct from the commoner "utility patents"
which are the ones we hear about every day.)
Making copyright serve as a patent with a
95-year term seems bad policy.

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2. Ernest Miller on July 1, 2005 08:59 AM writes...

Yes, but only if the aesthetic use of the article cannot be separated from the utilitarian aspects. So, for example, a cheesy painting on the side of a 1970s van would be copyrightable, since you could, theoretically, remove the painting from the van and display the painting separately. Another way or putting it is that the copyrightable elements have to be able to exist on their own terms.

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