Halloween Special – Costumes and Infringement

Costumes and Infringement

Richard Rimer

October 31, 2023

Costumes and Infringement

What’s scarier than watching vampires, ghosts, werewolves, zombies, etc. parade down your street tonight?

Seeing lawyers chasing them to hand them cease and desist letters! Costumes are full of intellectual property concerns so I thought this would be a fun topic for Halloween. However, It would be highly unlikely that someone wearing a costume could be sued for infringing on the rights from a movie, book, etc. After all, suing someone for infringement is a business decision. Accordingly, there are people who are more at risk. This includes people selling knockoff costumes and people making money from wearing a costume (think impersonator). 

Clothing is generally not covered by copyright law, but like most areas of the law, there are exceptions! The first being that parts of clothing which are physically or conceptually separate from the clothing can be subject to copyright protection. Making a costume that looks like a famous character could expose you to a claim of copyright infringement.

Is Your Costume Infringing on Someone’s Intellectual Property? 

I’m having a flashback to the Jaws costume I wore in the 70s. Cue the John Williams main theme. Part of my costume had a picture of the shark swimming towards a woman on the surface. That picture was conceptually separable from the costume and could be considered infringing. Unless, of course, the costumer maker got a license to use it. The second exception relates to masks and other accessories, which are generally subject to copyright law. Hopefully the maker of my old costume also got a license for the shark face mask that came with it!


Once you’ve cleared the copyright hurdle, you need to clear the trademark hurdle. This often will come into play when you look at the name of the costume. For example, I could create a “Scary Shark” costume today without a license. But, I would need a license to call the same costume “Jaws.” There is another layer of liability if the costume looks unmistakably like a famous character. And don’t forget the third layer of liability; If you sell services while wearing a costume similar to a well-known character (are you listening, faux Disney princesses who entertain at kids’ parties?).

While this topic is about costumes, it also demonstrates how copyright and trademark often cover the same item in a different way. This likely includes items you use in your business. The story also demonstrates that there is both an offensive and defensive position to both areas of law. I encourage you to think through your business and ask if you have any opportunities to make your business stronger.