Choosing the perfect Halloween costume is a struggle for most trick-or-treaters; however, it can be particularly challenging for intellectual property lawyers. In Canada, unlike in some other countries, copyright exists in costumes which are representations of a copyrighted real or fictitious being, event or place.[1] For people who don’t want to buy a licensed costume that only leaves a few options.
Would-be James Bonds and Sherlock Holmes are in luck though. In Canada, written works are protected under copyright for a period of 50 years after the death of the author, which puts both Ian Fleming’s and Sir Arthur Conan Doyle’s stories in the public domain. The movies and TV series on which most of us would base a costume are still protected however, meaning that unique elements of those productions not found in the original books may still be protected. So would-be Le Chiffres from Casino Royale should have two good eyes and Blofelds shouldn’t have white cats (both are Hollywood additions to the original characters).
Copyright-holders too are often faced with difficult costume decisions, specifically whether to enforce their rights against non-profiting fans. Unlike other forms of intellectual property, copyright-holders may choose to not enforce their rights. This can give rise to situations where it may be beneficial to sit on their rights to develop good will – look no further than your local comic convention. However, when third parties are profiting from your copyrighted work by producing works or destroying a hard-earned brand reputation, it may be time to take action.
Ultimately, costumes are a balancing act for both trick-or-treaters and rights-holders alike. A good intellectual property strategy is the same, tailored to maximize value and, similar to a good costume, often involves a fair amount of restraint.
[1] Copyright Act S. 64(3)
