As October 31st approaches, creativity peaks. Some people click “buy now” for an Amazon costume that arrives in a crinkly plastic bag, while others spend days cutting, gluing and sewing to create a masterpiece worthy of a costume contest trophy. From hand-crafted pumpkin suits to meticulously designed haunted house facades, the spirit of Halloween thrives on artistry. But amid the fog machines and fake cobwebs, can Halloween costumes or elaborate Halloween decorations be copyrighted? The short answer is that they partially can.

A work must meet certain baseline requirements to qualify for copyright protection — it must be created by a human author, independently made, exhibit a minimal degree of creativity and be fixed in a tangible medium.

Under 17 U.S.C. § 101, fixation means that a work must be embodied in a medium “sufficiently permanent or stable” to be perceived or reproduced “for a period of more than transitory duration.” In other words, it can’t be fleeting.

If a costume is cut out, painted or glued together for a few hours while kids are trick-or-treating, it is likely sufficiently fixed. Courts haven’t defined an exact threshold for how long a work must be fixed, but the Second Circuit noted in Cartoon Network LLLP v. CSC Holdings, Inc., 536 F.3d 121(2d Cir. 2008) that a work must exist for more than 1.2 seconds. By that standard, your pumpkin costume that lasts through an entire evening of trick-or-treating or your neighbor’s yard display that is left out for the last two weeks of October would qualify.

Fixation alone isn’t enough; Halloween costumes must address the functionality doctrine of copyright law. In Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 409 (2017), the Supreme Court held that the decorative designs on cheerleading uniforms could be copyrighted, but the full uniforms could not as they contained functional elements. Copyright law draws a line between ‘useful articles’ that have functionality and designs that do not.

Therefore, the creative components that can be separated from the clothing’s function may be copyrighted. The functionality doctrine is driven by the idea that the copyright laws should encourage innovation, and it would therefore be against public policy to allow someone to own a functional design and exclude others from it.

So, this Halloween, as you are crafting your masterpiece, remember that if your original costume or decorations have non-functional creative elements, they could qualify for protection. For further reading from our website on the topics discussed here, see the following Insights and IP Bits & Pieces^®: Copyrights and Co-Ownership, AI Can’t Hold Copyrights, and our Copyright FAQs.