Halloween Costume Copyright Case: Power Rangers Fight Copyright and Trademark Infringement
This past Halloween I’m sure we all have seen plenty of interesting costumes. Some of my favorite costumes this year were old faithfuls, like Waldo or Wonder Woman, and new ones inspired by happenings in 2011, like Black Swan. However, out of the many superhero costumes I saw trick-or-treating, one was missing. I did not see anyone dressed as a Power Ranger. It may have something to do with the current lawsuit regarding the Halloween costumes.
Time to flash back to my childhood. For those unfamiliar, the Mighty Morphin Power Rangers (“Power Rangers”) was a popular television series in the 1990s. The show was based on a group of teenagers that would morph into Rangers to fight the evil in the world. The superheroes were recognizable by their colored-coded costumes; they were dressed head-to-toe in blue, pink, red, yellow or black.
The company who owns the intellectual property rights to the Mighty Morphin Power Rangers filed suit against a website that sells Power Ranger-like costumes. SCG Power Rangers LLC (“SCG”), the company that owns the Power Ranger franchise, filed suit on October 13th against Underdog Endeavors for selling the Power Ranger costumes on its website mypartyshirt.com. SCG said that it filed the complaint only after it had sent Underdog Endeavors several cease and desist orders. The complaint alleges (1) copyright infringement (2) violation of Section 43(a) of the Lanham Act (3) Federal Trademark Infringement and (4) violation of the Federal Anti-Dilution Act (15 U.S.C. §1125(c))).
At issue in this case is whether these costumes violate the Copyright Act if they don’t reproduce the copyrighted characters or if the costumes don’t display the trademarked name. The real question here is more fundamental to copyright law: can costumes, and more generally clothing, be afforded copyright protection?
Under the Copyright Act, protection is not extended to “useful articles”. The Copyright Act only protects elements of the artist’s original work if those elements can be separated from the work’s utilitarian, or useful, function. A useful article is defined as an “article having intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” (17 U.S.C. §101) Therefore, most of these garments are not eligible for copyright protection because the costumes serve a purpose as clothing. The leading case on the issue of Halloween costumes is Chosun International, Inc. v. Chrisha Creations, Ltd., 214 F.3d 324 (2005), which holds that the design elements are entitled copyright protection if they can be separated from the overall function of the costume as clothing.
Obviously, if a costume is packaged with the trademarked name displayed, then the costume has most likely infringed on SCG’s trademark and copyright. However if the costumes do not display these trademarked names, the outcome becomes a little unclear. If SCG can prove that the individual design elements of the costume are separable from the costume’s utilitarian function as clothing, then the copyright infringement suit will likely be successful.
This case provides another example of the ongoing debate of whether fashion design and clothes can and should be afforded copyright protection. Currently, there is proposed legislation to amend the Copyright Act to extend protection to fashion design. This past July, the Subcommittee on Intellectual Property, Competition, and the Internet heard the proposed legislation. If passed, this legislation will have major effects on the design industry, including the Halloween costume industry.