Can I Be Liable if I Sell Halloween Costumes With Famous Brands and Characters?

Whether a Halloween costume infringes on trademark or copyrights depends on several factors, including the specific design of the costume, its branding, and how it’s marketed. This applies to the commercialization of costumes, no to personal use.

Use of Copyrighted or Trademarked Characters or Logos

• Risk of Infringement: If a costume directly replicates a character’s distinct look or includes logos associated with copyrighted or trademarked characters (like superhero logos), it may be infringing, especially if sold without proper licensing.
• Protected under Trademark: Recognizable logos, names, or emblems associated with characters, like Batman’s logo or Disney princess costumes, are usually trademarked, and unauthorized use can lead to infringement claims.   
• Possible Defense: Costumes that parody a trademarked character may fall under “fair use.” For example, a costume that humorously twists a famous character could be protected as parody. Courts have generally allowed some leeway for expressive, non-commercial uses that don’t confuse consumers.
• Limitations: However, this defense is narrow and depends heavily on context. Purely commercial use without transformative or expressive purpose is less likely to be protected.

But what protections exist for these creations under U.S. intellectual property law? While designers might want to safeguard their work, costumes present unique challenges regarding copyright, trademark, and patent protections.

1. Copyright Protection

Copyright is often the first line of defense for creators. Under U.S. copyright law, protection applies to “original works of authorship” fixed in a tangible medium, covering categories such as literary, musical, and dramatic works, as well as visual and sculptural pieces. However, copyright protection does not extend to functional items like most clothing​​.

When Costumes Qualify for Copyright

The U.S. Copyright Office has historically allowed limited copyright protection for costumes, specifically when a costume includes unique sculptural elements that stand apart from typical clothing. For instance, a superhero costume with elaborate, original three-dimensional features might qualify, while a simple witch or pirate outfit would not. This limited scope means that only highly original and decorative costumes have copyright protection, making it difficult for creators of everyday costumes to claim ownership​.

2. Trademark Protection

Trademarks protect symbols, names, and designs that identify and distinguish goods or services. While costumes themselves might not be protected by trademark, distinctive logos, names, or characters associated with them often are. For example, a costume labeled with a recognizable logo or slogan (e.g., a famous comic book character’s emblem) is likely protected by trademark law, provided it’s registered and used in commerce​.

3. Patents for Costume Design

While less common, patents can protect highly innovative or functional aspects of costume designs. If a costume involves novel structural or ornamental aspects that differ significantly from existing designs, a design patent might apply. Utility patents could also apply if the costume incorporates new functionality (like light-up elements or special effects).

4. The Limitations and Loopholes in Protecting Halloween Costumes

Despite these avenues, protecting Halloween costumes remains challenging. Costumes often incorporate ideas and themes from popular culture, which are typically unprotected by intellectual property law due to their generic nature. Courts have upheld that “ideas” themselves—like the general notion of a vampire or zombie costume—cannot be copyrighted or trademarked​. Moreover, costumes inspired by public domain characters (such as historical figures or folklore) are freely usable by all, reducing the scope for protection. While original designs associated with these characters can be protected, the underlying ideas and historical elements are not. This distinction can lead to a proliferation of lookalike costumes and competing designs based on unprotected themes.

I have helped countless businesses secure their trademarks in the United States and abroad—and I’d be happy to assist you too!

Stay informed with the latest legal developments at Global Law Experts