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Unmasking the Copyrightability of Costumes (and Clothing)

By Stephen W. Feingold, Marc A. Lieberstein, and Danielle R. Mendelsohn

An interesting split in the Circuits has developed over whether costumes are per se copyright ineligible. According to one line of cases, costumes are entitled to copyright protection if the design is unique. Another line of cases, however, seemingly endorsed by Second Circuit dicta, suggests that because the purpose of a costume is to allow its wearer to masquerade, the design of the costume is not conceptually separable from the clothing itself.

Applying these copyrightability concepts to clothing has perplexed several courts. While it is universally recognized that articles of clothing are useful articles, does the separability doctrine provide some protection for the design element of a particular clothing item? Though highly fact sensitive, generally the answer is “yes.” See Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989 (2d Cir. 1980); See also Poe v. Missing Persons, 745 F.2d 1238 (9th Cir. 1984); Animal Fair Inc. v. Amfesco Indus., 620 F.Supp. 175 (D.C. Minn. 1985), aff'd mem. 794 F.2d 678 (8th Cir. 1986).

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