IP Tech Knowledgy

Generally, a costume is not infringing on the rights of any third party.  Courts, including The Supreme Courtand the United States Copyright Office, have determined that a costume is considered a useful article, and thus is not generally subject to copyright.  Homemade costumes for Halloween, or Purim, or any other holiday, event, or nonevent would not be infringing on the rights of a third party. 

There are some nuances to the rule.  Masks are subject to copyright, so be careful when replicating a mask someone else created.  Also, design elements that can be perceived as separate from the costume, and on their own would be considered separate works of art, are protectable, so be careful not to copy extraneous features that are not part of the overall depiction.  This “separate works” test might be one way to obtain protection on certain creative features of a costume.

When making costumes to sell to others, trademark law applies.  The costume for sale cannot be so similar to a known character or other costume so as likely to confuse consumers about whether the owner of the original character or costume in some way sponsors, endorses or is connected with the replica.  Homemade costumes of famous characters for you or your child’s use – and not sold to others -- are not infringing on the original.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com