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About this Author
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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Category Archives

July 01, 2005

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

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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

October 31, 2003

An E-Voting Machine Goes "Boo!"

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Posted by Ernest Miller

What is more frightening on Halloween than an attack on the reliability of our voting system? This is the question cartoonist Tom Tomorrow asks in an episode from his comic strip This Modern World (This Modern World: Something Truly Terrifying). See, my E-Voting Archives for more info on how truly scary this is.

via Copyfight

UPDATE 1200 PT

Siva Vaidhyanathan reprints an article from the The Chronicle of Higher Education on the additional notice-and-takedown letters Diebold has been sending to universities whose students are standing up against Diebold's bullying (3 More Colleges Receive Cease-and-Desist Letters From Maker of Voting Machines). Of course, the article is already seriously out of date. See, the Why War? website for an update list, but at least three more universities (in addition to the one's in the article) have received notice-and-takedown letters as well (Targeting Diebold with Electronic Civil Disobedience). Of course, this won't get Diebold very far ... mirrors are appearing much faster than letters being sent.

On a personal note, a friend of mine was the intended target of one of the notice-and-takedown letters. More later when he has decided how he intends to respond.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | E-Voting | Halloween | Oddities

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

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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.

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

Pumpkin Carving DRM

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Posted by Ernest Miller

SpookMaster is one of the leading websites for those interested in advanced jack-o-lantern patterns. The website is a commercial enterprise, and though they have some free designs, they make money by selling the pumpking carving patterns. They have somewhat traditional designs such as "Frankie" and "The Bewitching Hour," as well as more contemporary designs, such as "Arnold Schwarzenegger." You might think that it would be relatively easy to copy the patterns which are shown on the site, and thus avoid paying for the patterns, but you would be wrong. Be sure to pay attention to the copyright notice:

If you try to copy an example pumpkin from the website you get the message These sample patterns look just like the real thing but they are NOT CARVEABLE. The sample patterns have been designed to look exactly like the carved patterns but with a few minor (unnoticeable) changes that make them impossible to carve. We don't do this to be mean, we do it to protect our business. [emphasis in original]

For added fun, try to copy and paste from their website and see what happens.

Readers may also be interested in the copyright notice on this Jack-o-Lantern Bookmark Crochet Pattern:

This pattern is COPYRIGHT © Jackie Karp 2002
Do NOT post on other web sites, crochet groups etc or copy illegally. It is free for personal use ONLY! Do not pass it on to other people via email or by copying it as you are taking traffic away from this site by doing so

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Rights Management | Halloween | Oddities

Knott's Pirates Offer a Solution to File Sharing

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Posted by Ernest Miller

Every year in October since 1973, Knott's Berry Farm (a theme park in Southern California) is transformed into Knott's Scary Farm, one huge, fiendishly frightening park with more than a dozen haunted mazes and other horrific attractions. It is the first and many think the best Halloween-themed theme park. If you enjoy things Halloween and are in Southern California during October, it is a must see.

In any case, one of the highlights of a visit to the Halloween Haunt is "The Hanging," which is a parody of pop culture and celebrities, with many stunts and special effects. During the event dozens of celebrities are slaughtered, soaking the stage (and some in the audience) with blood. A review of last year's show called the parody "so good you can smell the lawsuit." This year's hanging featured a Pirate Theme, "The Curse of the Black Pearl Necklace," a risque parody of Disney's Pirates of the Caribbean.

What would a pirate-themed parody of contemporary culture be without some references to file sharing?

In this year's show, the ghost pirates (or are they pirate ghosts?) complained that users of file sharing programs, such as "Kazaa..aar", were not real pirates and were giving piracy a bad name [I note that the audience cheered quite loudly at the mention of "Kazaa..aar"]. The "real" pirates realized how difficult it would be stop P2P programs, but they had a solution. If you can't stop P2P, you have to stop the file sharing at the source - by killing the celebrities who produce the works that will be shared! The audience seemed to like the solution quite a bit.

Comments (0) + TrackBacks (0) | Category: File Sharing | Halloween | Oddities

Happy Halloween, Nosferatu (No Thanks to Copyright)

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Posted by Ernest Miller

Tonight, while the trick-or-treaters visit, I will be screening Nosferatu in my driveway on an 80" HDTV projection screen.

Released in silent black and white in 1922, Nosferatu is an unauthorized adaptation of the novel "Dracula" by Bram Stoker and is widely considered one of the classics of cinema. Certainly, many think it is the best adaptation of Dracula in film, one of the most influential horror movies of all time and a masterpiece of Expressionist filmmaking. Thanks to copyright law, however, this film was very nearly lost to us (The Saga of Nosferatu).

Florence Stoker, widow of Bram Stoker (who had died in 1912), sued the producers of Nosferatu for infringement and won. As part of the 1925 decision, all copies of Nosferatu were to be destroyed. Most were. Over the next few years, any copies that became public were also destroyed. This may have meant the end of the film, except that a few isolated copies managed to survive Florence Stoker's death in 1937.

Thank goodness for "pirates."

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