Harley Quinn is the most searched costume this Halloween, but could dressing like her make you an actual lawbreaker?
According to Google, Harley Quinn is this year’s top trending Halloween costume.[1] A check of Google’s FrightGeist page reveals that several costumes from the Batman franchise are among the nation’s top choices.[2] Four other Batman characters appear in the top 25; Batman at 5th, Joker at 9th, Catwoman at 14th, and Poison Ivy at 24th. While the Batman characters have remained steady selections for costumes over the years, this year has seen a rise in their popularity likely due to the upcoming films “Batman v. Superman: Dawn of Justice” and “Suicide Squad”.[3]
In fact, you or one of your friends have probably dressed up as one of these characters in the past. Even though you might have been portraying a criminal, you probably didn’t consider whether your costume actually broke the law. Costumes fall under copyright protection and present a tricky situation when it comes to copyright law. So does your homemade costume constitute copyright infringement? The short answer is: It depends.
The Copyright Act of 1976 protects original works of authorship.[4] This includes literary works; pictorial, graphic, and sculptural works; and motion pictures and other audiovisual works.[5] This means that characters like Batman, the Joker, or Harley Quinn are protected intellectual property; however, protection is not usually given to “useful articles” such as clothing.[6] So how does this apply to the depiction of a copyrighted character through a costume?
If the character has a distinctive appearance or costume, that costume might be protected if it meets certain standards.[7] In 1991, the Copyright Office adopted a Policy Decision explaining that a costume is only copyright protected if it contains features that “can be identified as separable from the utilitarian aspects of that article.”[8] This means that the Joker’s suit by itself, which serves the utilitarian purpose of clothing, is probably not protected. On the other hand, a Batsuit containing the Bat emblem is protected because the emblem is an artistic element, which can be removed and is separable from the suit’s utility as clothing. However, if the look created is substantially similar to the copyrightable character, this can be considered infringement because only the copyright holder has the right to display their work and create derivative work.[9]
One way for costumers to defend themselves from copyright infringement is by invoking the affirmative defense of fair use.[10] Factors that weigh against a costumer are whether the costume has a commercial use, and if the costume interferes with the market for the copyright holder’s work.[11] If a copyright holder were to sue you, you may argue that the costume was for personal use and not for commercial use. Though, the copyright holder may have a stronger case for proving market interference. For example, if you were to make a Harley Quinn costume, and there was in fact a licensed Harley Quinn costume available from D.C. Comics, you would have hurt the market for that licensed merchandise.
Fortunately for costumers, the cost of litigation makes it very unlikely that an individual will be sued for making and wearing a costume of their favorite comic book character.[12] However, the risk adverse can play it safe this Halloween by purchasing licensed merchandise instead, though it may go against Harley Quinn’s rebellious spirit.
Image: “Wa-loli Harley Quinn” by pullip_junk is licensed under CC BY-NC-ND 2.0.
Footnotes
