How Useful Is Your Halloween Costume? Knock-off Costumes and the Useful Article Doctrine

So, I hear you are selling Halloween costumes, the designs for which you copied from another manufacturer. Well, gather around the fire, because I have a very scary story to tell you.

Chosun International was the manufacturer of impossibly cute animal costumes for children, featuring plush sculpted hoods and sleeves shaped like various animals’ heads and paws. In 2002, Chosun sued one of its competitors for copying these designs. In a very eerie opinion, the District Court dismissed the complaint for failure to state a claim, holding that Halloween costumes were not entitled to copyright protection as a matter of law!

In coming to this conclusion, the District Court cited the Copyright Act’s “useful article” doctrine, which denies copyright protection for the merely utilitarian aspects of a design. Under this doctrine, for example, the two-dimensional pattern on a dress may be copyrightable, but the actual three-dimensional cut of the dress (which serves the utilitarian purpose of fitting the human body) is generally not protected by copyright. In the Chosun case, the District Court held that each entire costume served the useful purpose of “masquerading,” and therefore they were not protectable.

If that has you scratching your pumpkin, you are not alone. The Second Circuit, in Chosun International, Inc. v. Chrisha Creations, Ltd., 413 F. 3d 324 (2005), vacated this decision. The Court noted that, notwithstanding the useful article doctrine, individual design elements on a utilitarian item, which are physically or conceptually separable from the underlying product, may be protected by copyright. In the case of the costumes, the District Court had erred in holding that the plush sculpted hoods, and maybe the paws, were not conceptually separable from the costume’s “clothing function.” In other words, the addition of the head and paws was not motivated by a desire merely to enhance costume’s functionality as clothing. The Second Circuit remanded the matter, and the case later settled.

So watch out this Halloween, costume copycats! The useful article doctrine may be less useful than you thought.

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