Elements of Halloween Costumes Subject to Copyright

In a June 30,2005 decision, Chosun International, Inc. v. Chrisha Creations, Ltd., Docket No. 04-1975 (2nd Cir. 6/30/05), the Second Circuit reversed and remanded a district court decision dismissing a complaint for copyright infringement of Halloween costumes for failure to state a claim. The dismissal was based on the trial court's conclusion that Halloween costumes--a lion, an orangutan and a ladybug--were "useful" articles and not copyrightable as a matter of law.

Acknowledging that the Second Circuit allowed protection under the Copyright Act, for individual elements of a utilitarian design provided the elements are physically or conceptually separate, the district court nevertheless found that such a test was inapplicable to Halloween costumes. The district court held that no elements of the costumes could possibly be separable from their utilitarian function as devices with which to masquerade.

The Second Circuit acknowledged earlier decisions questioning whether Halloween costumes were not subject to copyright, but noted that the Second Circuit had also recognized that individual design elements in the clothing could be eligible for copyright protection, citing Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F. 2nd 411, 418 (2d Cir. 1985).(Distinctive belt buckles were copyrightable even though belt as a whole served the useful purpose of keeping one's pants from falling down. )

The Court of Appeals found that the district court had erred in failing to analyze whether the heads and "hands" of the costumes could be physically or conceptually separate from the whole. In vacating the trial court's decision, the Court ruled that the plaintiff should have been allowed to show that these elements invoke in the viewer a concept separate from, and not included because of a desire to enhance, the costume's function as "clothing."