by Marianela Ramos Capelo
Let’s say you want to dress up as Thor for Halloween. Is making your own costume a copyright violation?
Halloween is upon us and just like every other year, people from all ages will be out trick or treating dressed as their favourite thing or character. While there are some classics – ghosts, vampires, witches and punny ones like “cereal” killers – many of us draw directly from popular culture and that means drawing directly from copyrighted characters.
Just as a curiosity, do you think you’d be slapped with a copyright violation notice if you were to reproduce one of these characters’ likeness?
It might sound far-fetched, but in the US in 2011, a Halloween costume manufacturer by the name of Underdog Endeavors Inc. was sued by SCG Power Rangers, LLC for the production of Power Ranger costumes. Eventually, the two parties settled, with the costume manufacturer giving up the profits obtained from the costume sales. And this case has definintely not been the only one of its kind.
In Canada, costume designs are considered to be under copyright. So mass producing a costume such as Marvel’s Thor, for example, without clearing the rights to use the character might not be the best idea. The Copyright Act does contain copyright exceptions for articles that have a “utilitarian function,” like clothing, but there are elements in a costume that might go beyond the clothing function, like Thor’s hammer.
The key part here is that if you are making the costume for your own personal use, you should be OK, as you would likely fall under the “reproduction for private purposes” exception of the Copyright Act. The cases mentioned above likely infringed copyright laws due to the fact that these companies were manufacturing costumes to sell to others without having the rights to reproduce the likeness of the characters, which is a different case from the DIY Halloween garbs we are talking about here.
So, again, crafting your own costume, even if it is emulating a copyrighted character, is protected by the Copyright Act. And this might sound obvious, but it is one of those provisions we take for granted. Remember the law can change at any time. In fact, right now, the government of Canada is running a consultation to decide on the future of copyright and lobbyists are all too eager to tip the rules in their favour.
Let’s not take the exceptions that allow us to create and craft for granted. Canada has some of the strongest and more progressive copyright laws in the world so let’s make sure we keep them that way. You can have your say at letstalkcopyright.ca
In the meantime, craft away!
A special thank you to the folks at CIPPIC for reviewing and providing their expertise on the accuracy of the legal-side of this copyright trivia.
Marianela Ramos Capelo is a design specialist in the communications team for OpenMedia, a non-profit organization that works to keep the internet open, affordable and surveillance-free. openmedia.org