Is your Halloween costume legal?
Is the costume an art work?
First, not all costumes are protected by copyright. To be considered a protected work, the costume must:
- Be original
- Be fixed on a support
- Have required the exercise of the author's talent and judgment
For example, a generic princess or knight costume does not benefit from legal protection, because it is based on a common concept and not on an original idea.
The same goes for witch or vampire costumes. Feel free to wear a hooked nose or sharp teeth to hand out candy.
A costume is also considered original if it was created in the context of another work: a play, movie, TV series or comic book. This would be the case, for example, of a costume of Ariel the Little Mermaid.
Is Halloween an exception?
If children and adults do not hesitate to go around on Halloween with costumes borrowing from existing works, it is because several exceptions to copyright apply to costumes.
In particular, a costume will not be protected by copyright if:
- It consists of everyday clothing
- The work or character is in the public domain (e.g. Frankenstein's creature)
- It is reproduced for private use only
Dressing up just for fun
It is this "private use" exception that allows you to reproduce Harry Potter's wand and pretend to cast spells on those who would only offer you St. Catherine's taffy during your October 31st trip.
The Copyright Act takes into account the context of use and allows you to reproduce a work for private purposes.
You can replicate an element or the entire costume of a character from a favorite movie and go door to door in peace — as long as you don't make any profit from it.
Make a Loki costume to impress your friends? No problem.
However, you'll need to contact the rights holders of the character in question before you can market your sewing skills and sell copies of the costume on an online store.
When looking for a costume for Halloween or the next Comiccon, you can get inspired by visiting blogs, websites and social networks.
You'll find tons of costumes that copy the outfits of recognizable characters from popular culture.
But are you allowed to copy the outfit of a comic book hero or a blockbuster movie? Are you violating copyright law by dressing up as Cinderella or Dracula?
What about a Squid Game guard?
Under the law, a costume can be considered a copyrighted artistic work.
Don't worry: there are several exceptions to the law that may allow you to make your own Captain America costume and wear it in public.
Your favorite YouTube celebrity posts Pirates of the Caribbean-inspired makeup tutorials?
Good news: the law also provides an exception for remixing. This exception allows for the incorporation of a protected, but publicly available, work into a new work created for non-commercial purposes.
Thanks to this exception, it is even possible to distribute this new work on the Internet, under certain conditions.
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