In the spirit of Halloween, SCG Power Rangers LLC treated itself to the nifty trick of bringing costumes to the forefront of copyright and trademark law.  THR, Esq. reports that SCG filed a complaint in the Central District of California against Undergo Endeavors, operators of MyPartyShirt.com for copyright and trademark infringement over the website’s sale of Power Ranger costumes.  SCG owns all the intellectual property rights relating to the popular “Power Rangers” television series and controls the licensing and merchandising deals of the Power Rangers brand. After the defendant ignored several cease and desist letters, the plaintiff sued, seeking an injunction and statutory damages.

Perhaps the lawsuit already had an impact on the defendant, as searches on their website have failed to produce any Power Rangers costume results. However, does the plaintiff’s copyright and trademark claims have any legal traction? Under the Copyright Act, apparel cannot receive copyright protection because it is considered a “useful article.” Pictorial, graphic and sculptural aspects of a useful article may be copyrighted, if they may be separated from the article, either physically or conceptually.  Clothing rarely has met this test.  Some costume-designers have tried to sneak around this limit by registering the costume as a “soft sculpture,” as in another Halloween case, Whimsicality, Inc. v. Rubie’s Costume Co. Inc.  The Whimsicality court found that the plaintiff had misrepresented itself to the Copyright Office, and, therefore, did not have valid protection over its creations, simply registered as Pumpkin, Bee, Penguin, Spider, Hippo Ballerina, and Tyrannosaurus Rex.

The latest case differs in that the costume may have some graphical originality or may be characterized as a character for copyright, as explained by THR, Esq. While plaintiff’s trademark claims probably will get further in court, this case definitely tests the limits of copyright. Will it be more than a flicker in the autumn darkness?