Op-Ed: Fair Use and Halloween

Fair Use and Halloween
By Joshua Lamel
October 31, 2017

This year, the top three most-searched Halloween costumes all come from popular movies: Wonder Woman, Harley Quinn and the clown from Stephen King’s It. Other popular costumes for trick-or-treaters of all ages include Moana, Batman, Chucky, Daenerys Targaryen, and Mickey Mouse. Every October, Americans look to their favorite movies, TV shows and books for Halloween costume inspiration (I’m not immune: I’m going as Dustin from Stranger Things).

What most people don’t realize, however, is that Halloween costumes have a direct relationship to copyright. Dressing up for Halloween — without the risk of a Hollywood movie studio suing you for copyright infringement — is only possible because of a legal doctrine called “fair use”.

Fair use allows us to borrow from copyrighted works for a limited and transformative purpose. In fact, we take advantage of fair use almost every day, whether watching a movie clip in school, texting with gifs or even the simple act of using your cell phone. All of these activities involve borrowing from copyrighted materials in a way that doesn’t detract from the original creator’s marketbase.

Trick-or-treaters don’t need to ask Disney or Marvel for permission to dress up as Snow White or Spiderman. Because of fair use, you can make your own costume — whether it’s handsewn, 3D-printed, or just thrown together from clothes you already own.

Halloween is also an opportunity for parody, which is a prime example of fair use. Parody transforms the original work by subjecting it to ridicule. Maybe you’re Dumbledora the Explorer or a zombie Tinkerbell. These costumes poke fun at the original idea while transforming into something new.

For some trick-or-treaters, a store-bought costume isn’t going to work with their physical limitations. Fair use allows parents to create the costumes of their kids’ dreams while working around physical disabilities. One mom transformed her daughter’s wheelchair into Cinderella’s carriage; others have remodeled wheelchairs into the iconic Iron Throne from Game of Thrones.These creative expressions and examples of fair use enable people of all ages and all abilities to still feel part of Halloween’s fun.

Fair use is part of the reason the Halloween costume business is a multibillion dollar industry. Fair use industries account for 16% of the U.S. economy, including the $3.4 billion spent on Halloween costumes each year. Many companies license their movie and TV characters to official designers, but other costume companies still create their own variations of these characters. This is why you see “Bell of the Ball” and “Classic Beauty” costume names for designs that are inspired by Disney Princess Belle — but aren’t exact copies. These inspired costumes add to the overall revenues generated from the Halloween market, while also opening more design options and price points to consumers.

This re-imagining of copyrighted material also benefits the original copyright holder by keeping their creation in front of the public. For every homemade Wonder Woman costume that generates interest in the old television show or new Hollywood movie, there is a Catwoman that time forgot.

Halloween is one of the most iconic and popular traditions in America because it is a celebration of creative expression (also the candy). Whether you intricately designed your homemade Handmaid’s Tale costume or put together your Harry Potter costume from the clothes already in your closet, remember that fair use is what helps you exercise the right to creative expression and free speech on Halloween and every other day.

Joshua Lamel is executive director of the Re: Create Coalition.