Trick or Treat? Company Sues Kmart for Infringement of Copyrighted Halloween Costume

People everywhere are deciding what costumes they ought to wear for Halloween. Meanwhile, businesses that manufacture and sell various costumes are thinking about ways to maximize their profits in the face of overwhelming competition. Americans are expected to spend $3.4 billion on costumes this year, based on a study conducted by the National Retail Federation and Proper Insights & Analytics. Keeping in mind the spooky size of this industry, it makes sense that costume manufacturers are quick to file copyright lawsuits against alleged infringers.

Silvertop Associates, Inc., which does business as ‘Rasta Imposta’ is a manufacturer of the always-popular banana costume. For many years, Silvertop has been a contract wholesaler of these costumes to retailers like Sears and Kmart. This year, however, Kmart failed to reach an agreement with Silvertop. Kmart then decided to go with a different vendor, one that is also selling banana costumes. According to the lawsuit filed by Silvertop, the competitor’s banana costume constitutes a copyright infringement because it is a direct replication. The purpose of copyright law is to protect a unique expression of a work of art, whether it is a literary composition, compilation, or a piece of clothing. It does not protect an idea itself (see Patent law). In order to be copyrightable, a work needs to satisfy a very low threshold of creativity. Based on the fact that virtually every retailer of Halloween costumes sells some derivation of the banana costume, reasonable minds may very well disagree whether this low bar for creativity is met.


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