Halloween Costumes & Knock-offs

          Happy Halloween! I’ve always loved Halloween; it might be my favorite holiday. Not only do I love the costumes, decorations, and candy, it’s also close to my birthday. I’m definitely a Halloween person.

            Adding to my love of the holiday was the fact one of my earlier jobs as a lawyer was working for a retailer of Halloween costumes and décor. Not only was it a fun job, but it also provided a crash-course on the outer limits of intellectual property law. As many people are aware, knock off costumes – unlicensed costumes resembling popular characters – are abundant. Knock offs are abundant for a few reasons. First, some costume manufacturers cannot afford the licensing fees but still want to capitalize on a recent trend or fad. Second, sometimes a license for a particular property might not be available, either due to poor planning by the licensor, choice, or unforeseen popularity. And third, if done correctly knock-off costumes are legal under copyright law.

            Knock-offs can be legal because copyright law does not protect functional designs. If a design is important to the actual purpose and operation of the good, then it’s not protected by copyright. (Patent protection for elements of clothing is possible, but will not be discussed here.) Therefore, clothes are generally not protected by copyright. However, the designs on the clothing, if distinctive enough, can be protected by copyright. This issue was recently addressed by the U.S. Supreme Court in the Star Athletics case, which I previewed here. So, if a manufacturer can come up with a design evoking a popular character without infringing on any possible copyrightable elements of the costume, then their costume should be legal under copyright law. However, they still must be wary to not run afoul of trademark law, which means they cannot use the character’s name or any related logos associated with the character, and they have to be wary of right of publicity law, meaning they have to be careful about using a famous person’s name or likeness. It can make for some interesting products and descriptions. Below are a few of the more interesting ones I found recently. (Note: affiliate links)

Most of us should be able to guess who this is supposed to be.


A little trickier, but click through the link to see the product description, which makes it obvious and could run them afoul of the rights-holder.

Most of my readers should be able to guess this one.

It's a little harder to find men's costumes skirting this issue, and it's not always obvious. To me, this seems like it's evoking a certain character from a long-running animated sitcom.

Changing Work Made for Hire

When I was in law school, I wrote a paper on what I perceived to be unfairness in the Copyright Act’s work-made-for-hire law. The main reason I believed the law to be unfair was due to the plight of comic book creators, and a good chunk of the article went on to highlight some of the unequal treatment creators encountered under this law. My article proposed a remedy to try and address the problem. It is not my finest work. But, it does have some concepts worth exploring.

I’ve written before about work-made-for-hire agreements, and I’ve discussed some lawsuits creators have brought trying to reclaim characters they created, but I don’t believe I’ve addressed the basics of why the doctrine exists in the first place. The work-made-for-hire doctrine was formally adopted in the Copyright Act of 1909, where it was briefly mentioned,[1] and it was adopted in more detail in the 1976 Copyright Act. (I previously discussed it in depth here: http://www.comicslawyer.com/2016/08/work-made-for-hire.html). The basic rationale behind the doctrine is that an employer has paid an employee to create the work, and it therefore belongs to the employer.

While writing my paper in law school, I believed the work-made-for-hire doctrine unfair to comic book creators. In most employment-related situations, the salary paid to an employee for their work is adequate. However, when an employee creates something potentially worth millions of dollars to the company, is it fair for the employee’s only compensation to be his salary?

The main remedy I advocated called for reworking the work-made-for-hire doctrine into a mandatory licensing scheme. Instead of the employee having no rights to his creation, he would be entitled to a fixed percentage of revenue generated by his creation outside of its original work. For instance, if the character was originally introduced in an established title but soon found its way into a stand-alone comic book, the creator would receive a percentage of profits. Additionally, if the publisher stopped exploiting the character for a fixed period of time, the rights to the character would revert back to the creator.

At the time, I thought my idea novel and a great solution to a problem I believed was prevalent. I spoke with a few people in the industry at the time, but I was not privy to the behind-the-scenes deals that were in place between publishers and their creators. My knowledge of the industry was a far cry from what it is today. The information on the inner workings of the comic book industry available today online and through well-researched books far surpasses what was available a decade ago. Imagine my surprise when I finally learned DC and Marvel had instituted a system not too dissimilar to my proposal on their own years before.

The best publicly available description of this policy I’ve been able to locate was posted by Mark Waid on his Thrillbent site: http://thrillbent.com/blog/how-dc-contracts-work/. It’s a fascinating read, and if you haven’t read it you should. Basically, if creators introduced a new character, they would be paid a small royalty on the revenue the character generates for the company.

Perhaps unsurprisingly, I was a little embarrassed when I discovered my “big idea” to help creators was already put into place years before. The nuts and bolts differ from what I proposed, but the basic elements are the same. Two differences separate my proposal from theirs. First, mine would be a change to copyright law. The programs put in place by the publishers are contractual—at best. If the additional incentives paid to creators are policies enacted by the companies and not actual contractual obligations, the company can change the program without much input from the creator.  Second, I advocated a way for the creators to regain their characters if the publisher failed to utilize it. While certain creators may be able to contractually negotiate this happening, most cannot. For those who cannot, their creations will always belong to the publisher.

Even though I’m embarrassed I failed to discover when I was writing my paper my solution was already being implemented, I’m still proud of myself for coming up with an idea to resolve the problem similar to what was actually used. Not too bad for a second year law student.     

---

[1] “…or by an employer for whom such work is made for hire…”, Sec. 23, Copyright Act of 1909.