Ghoul Rights Reserved: The Legal Side of Halloween

By Barbara Mandell

Costumes, masks, vampires, and candy corn are symbols of Halloween. But can anyone own rights to these icons of fright and festivity? Can you use any for personal reasons, i.e., for home decor or personal attire? What about in commercial contexts, such as in advertising?

COSTUMES

Generally, copyright law does not protect clothing articles because they are “useful articles.” Costumes can sometimes be so creative that they overcome this legal hurdle. For example, in one famous case, Rasta Imposta sued Kangaroo Manufacturing over a “look-alike” banana costume. The United States Court of Appeals for the Third Circuit said yes — copyright applies. 

Patents, however, have been used to protect Halloween-themed costumes that have innovative designs, such as different kinds of lighting embedded in them, to promote the visibility of trick-or-treaters.

MASKS

What about Halloween masks? Do they qualify for copyright protection? The U.S. Court of Appeals for the Third Circuit in Masquerade Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663 (3d Cir. 1990), was asked to review a decision by a District Court that held that masks designed to resemble the noses of a pig, elephant and a parrot respectively, were “useful articles” and, therefore, not copyrightable because their sculptural elements were not severable from their “utilitarian purpose” of allowing one to masquerade in an animal’s nose. Really?! The Third Circuit reversed that decision, ruling that the nose masks fell outside of the “useful article” classification and may qualify for copyright protection. It explained that a “useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information,” 912 F.2d at 670, and nose masks have no utility other than that derived from their appearance. A copyright registration in this context means that the public is free to create a mask that copies the actual nose of a pig, elephant, or parrot, but not copy the copy, i.e., the already-created masks. 

But, in another copyright case, a court held that there was no copyright protection for the mask worn in the classic horror movie Halloween. The mask was modeled from a mold of William Shatner’s face. Because the mask was a mold of Shatner’s face, it was not sufficiently creative to merit copyright protection.

VAMPIRES

What about vampires? Can they be used in commercial content? The answer is “yes.” Bram Stoker, the so-called Father of Vampire Fiction, published Dracula in 1897. In 1922, Nosferatu, a German silent horror film adaptation of Dracula, was successfully sued in Germany by Bram Stoker’s estate, but the United States was a different “story.” Dracula was already in the public domain and so Nosferatu survived.

Here, vampires are not only a mainstay of films, but also television, for example, Grandpa in the TV show, the ”Munsters,” (1964-1966) and movie (2022), the Barnabas Collins vampire character in the T.V. soap opera (1966-1971) and movie (2012), “Dark Shadows,”  and the “Count” from Sesame Street, who spends his time counting. 

TRADEMARK TREATS

Lastly, in keeping with our theme of Halloween and IP, in October 2011, the United States Patent and Trademark Office launched a campaign that became known as “#CREEPY IP”. Included in the library are registered trademark No. 3085088 for Ghostbusters, owned by Columbia Pictures Studios, registered trademark No. 4077831 for Count Chocula cereal, owned by General Mills, and a non-visual sound mark for Darth Vader, USTM No. 3618322, owned by Lucasfilm Entertainment consisting of the sound of rhythmic mechanical human breathing created by breathing through a scuba tank regulator.

For more information on “#CREEPY IP”, see this AMA from the US Patent and Trademark Office (“We’re the creators of #CreepyIP, a celebration of weird and spooky patents and trademarks, AMA!”).

Finally, check out this fun kernel on candy corn.

Happy Halloween from the Fishman Stewart Team!

Barbara Mandell is a partner at the firm. She has over 30 years’ experience in complex litigation. Her practice is focused on litigating, arbitrating and counseling her clients on patent, trademark and licensing matters as well as antitrust law.