Copyright Halloween Mask Copyright Question

[Jeffs46]

Jurisdiction

California

Hello. I'm making a mico budget short film to be submitted to film festivals and the most likely destination is youtube. I want one of the characters to wear a mask of an animal... It is a generic mask, not based on an existing character in another film (Like the pig mask in Saw or Ghostface in scream). I've read it is possible to copyright a mask but that it has to be original? And for example the mik myers mask wasn't protected because it was William Shatner's face. So my question is would I have to worry about infringement for the mask of an animal like I described? Thanks! Jeff

 

[zddoodah]

I've read it is possible to copyright a mask but that it has to be original?

The scope of copyright includes pictorial, graphic, and sculptural works, which would include something like a Halloween mask. A basic, lifelike animal mask is unlikely to have sufficient originality to be protected, but it's impossible to say in the abstract.

Also, you should be aware that one does not "copyright" something. "Copyright" is a noun or an adjective. Copyright protection exists from the moment a work is fixed in a tangible medium of expression. Once you've created the work, it is protected, so there is no act that could be described as "copyrighting." Some folks mistakenly believe use "copyright" as a verb to refer to the registration of a copyright. However, registration is not required for copyright protection to exist. Registration does, however, provide significant benefits if the work has or is likely to have any real commercial value.

And for example the mik myers mask wasn't protected because it was William Shatner's face.

Not sure where you're getting this from, but it's not really relevant to your situation.

So my question is would I have to worry about infringement for the mask of an animal like I described?

Are you asking if you're at risk of being sued for infringing someone else's protected work? Or are you asking whether someone might seek to infringe your work? Either way, we can't possibly know. That said, as noted above, a basic, lifelike animal mask is unlikely to have sufficient originality to be protected.

 

[Zigner]

Also, you should be aware that one does not "copyright" something. "Copyright" is a noun or an adjective. Copyright protection exists from the moment a work is fixed in a tangible medium of expression. Once you've created the work, it is protected, so there is no act that could be described as "copyrighting." Some folks mistakenly believe use "copyright" as a verb to refer to the registration of a copyright. However, registration is not required for copyright protection to exist. Registration does, however, provide significant benefits if the work has or is likely to have any real commercial value.

We've been over this before. "Copyright" is, in fact, also a verb. While your statement may have been true in the past, language changes and definitions adapt to real-world usage.

Definition of COPYRIGHT

 

[Tax Counsel]

We've been over this before. "Copyright" is, in fact, also a verb. While your statement may have been true in the past, language changes and definitions adapt to real-world usage.

Definition of COPYRIGHT

The confusion arises because registration is no longer required (and has not been required for a very long time) to have copyright protection. So I get where zddoodah is coming from. Yes there was a verb use of the form when registration was required to get copyright protection, but it makes no sense to use it as a verb today even though dictionaries still include it as a verb. zddoodah and I had this very conversation awhile back on one of the forums all three of us participate in (I don't recall which one or just how long ago that was.) In short, it's not a case of evolution of the language. It is a misuse of it. The definition hasn't really changed or evolved but how copyright protection is obtained has. Thus I would say the verb use is now antiquated rather than evolved.

 

[Jeffs46]

The scope of copyright includes pictorial, graphic, and sculptural works, which would include something like a Halloween mask. A basic, lifelike animal mask is unlikely to have sufficient originality to be protected, but it's impossible to say in the abstract.

Are you asking if you're at risk of being sued for infringing someone else's protected work? Or are you asking whether someone might seek to infringe your work? Either way, we can't possibly know. That said, as noted above, a basic, lifelike animal mask is unlikely to have sufficient originality to be protected.

Thank you for your answer. I am concerned with the possibility of being sued.

 

[adjusterjack]

I am concerned with the possibility of being sued.

Here's two ways of minimizing the possibility of being sued.

1 - Create your own mask and you have copyright protection.

2 - Get consent from wherever you are getting the "generic" mask.

Every one of the animal masks in these images were created by somebody who has copyright protection for those creations.

animal masks at DuckDuckGo

 

[Jeffs46]

The scope of copyright includes pictorial, graphic, and sculptural works, which would include something like a Halloween mask. A basic, lifelike animal mask is unlikely to have sufficient originality to be protected, but it's impossible to say in the abstract.

And for example the mike myers mask wasn't protected because it was William Shatner's face.

Not sure where you're getting this from, but it's not really relevant to your situation.

That said, as noted above, a basic, lifelike animal mask is unlikely to have sufficient originality to be protected.

RE: Mike Myers - Here is where I got that from:
"Halloween masks, as opposed to body costumes, are not useful articles. The Copyright Office has advised that, "since masks generally portray their own appearance, this subject matter appears to fall outside the definition of 'useful article.'" However, masks still have to be original enough to warrant copyright protection. For example, in one court case in the Eastern District of Pennsylvania the makers of the Halloween movies were sued by the person who created the creepy mask worn by killer Michael Myers. But the court held that since the mask was just a mold of actor William Shatner's head, it was not original enough to merit copyright protection. Yes, Michael Myers = William Shatner."

You can see the full article here: Does Your Halloween Costume Infringe a Copyright? | The Reeves Law Group.

Between the above the Pennsylvania case and what zddoodah said I think I'm safe unless some posts something to the contrary.

 

[flyingron]

While it is true that copyright was originally a noun (since the 18th century), it started to be used as a verb in publication in the mid 19th century. It's hardly a 'recent' development here in the 21st century.

 

[flyingron]

The obvious next question is that even if the mask is protected by copyright, does that preclude you from having a character wear it in a movie. Zd touches on this lightly in his first response, it likely depends on just how you use it.

Another issue is trademark.

 

[zddoodah]

We've been over this before.

You're right; we have. But you don't seen to get it. Let's see what the definition is at the link YOU provided:

"to secure a copyright on"

That's utterly meaningless. What act can one take "to secure a copyright on" something. Your online dictionary offers an example: "He has copyrighted all of his plays."

Again, utterly meaningless. What act did our unknown playwright take to "copyright[] all of his plays"? The answer is nothing because, in the United States, there is no act that can be taken "to secure a copyright on" something. Or, viewed from a different perspective, the only action that one can take "to secure a copyright on" something is to create the thing in the first place. If you want to define "copyright" to mean "to create something that is protected by copyright law," I suppose we could do that, but that would be more than silly (not that the English language isn't ever silly, but I think it's something to be avoided).

I'm well aware that folks commonly use "copyright" as a verb. I have noted many times that, when people do that, what they're typically talking about is registering a copyright. However, using "copyright" in that regard perpetuates the myth that registration is required.

Maybe you're ok with perpetuating myths. Maybe you've used a time machine to come here from a time prior to January 1, 1978 (the date when the Copyright Act of 1976 went into effect). I don't know. But I will continue to clarify this for people who come to these forums so that they don't walk away thinking that there is some act that they need to do "to secure a copyright on" something.

 

[Jeffs46]

True. You don't need to register a work with the copyright office. But, unless the below is incorrect it makes a whole lot of sense to do so.

The Benefits of Copyright Registration | Klemchuk PLLC | Intellectual Property Law Firm

Here is one key point form the link for those who don't want to click on it:

Copyright registration is a prerequisite to file a lawsuit.
In 2019, the United States Supreme Court ruled in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, that a copyright must be registered with the Copyright Office before a lawsuit for infringement of the copyright can be filed.

 

[Zigner]

But I will continue to clarify this for people who come to these forums so that they don't walk away thinking that there is some act that they need to do "to secure a copyright on" something.

IMO, it's fine to clarify that for others in order to educate them. I just object to you stating that their usage of the word is wrong. It is not; it is simply redundant.

 

[adjusterjack]

I suddenly have the image of Zddoodah and Zigner arguing the point well into their dotage.

 

[adjusterjack]

Carrying the argument a step further, do I patent my invention or do I obtain a patent for my invention?

 

[Zigner]

I suddenly have the image of Zddoodah and Zigner arguing the point well into their dotage.

View attachment 4446

Hahaha - ok I'll stop

 

[zddoodah]

Carrying the argument a step further, do I patent my invention or do I obtain a patent for my invention?

Since you didn't use the sarcasm font...

Obtaining patent rights for an invention requires affirmative action beyond the act of invention, so yes, you can patent an invention.

 

[zddoodah]

But, unless the below is incorrect it makes a whole lot of sense to do so.

You are correct. Registering a copyright is an absolute prerequisite to an infringement suit. 17 U.S.C. section 411.

In addition, as I alluded to in my initial response, registering a work prior to (or within a very short time after) infringement provides significant benefits. In particular, registration gives the copyright owner the ability to recover attorneys' fees in an infringement action and the option of recovering statutory damages instead of having to prove actual damages and/or that the infringer earned profits resulting from the infringement. 17 U.S.C. sections 412, 504 and 505. Both actual damages and profits from infringement are extremely difficult to prove, whereas no proof is required to obtain statutory damages. And, obviously, having the ability to recover attorneys' fees can make the all the difference in determining whether an infringement lawsuit is worthwhile.

 

[Zigner]

You are correct. Registering a copyright is an absolute prerequisite to an infringement suit. 17 U.S.C. section 411.

In addition, as I alluded to in my initial response, registering a work prior to (or within a very short time after) infringement provides significant benefits. In particular, registration gives the copyright owner the ability to recover attorneys' fees in an infringement action and the option of recovering statutory damages instead of having to prove actual damages and/or that the infringer earned profits resulting from the infringement. 17 U.S.C. sections 412, 504 and 505. Both actual damages and profits from infringement are extremely difficult to prove, whereas no proof is required to obtain statutory damages. And, obviously, having the ability to recover attorneys' fees can make the all the difference in determining whether an infringement lawsuit is worthwhile.

What you are saying is that one should go through the steps to copyright their work if they wish to enforce their rights through the courts fully, especially if they otherwise could not afford to do so.

 

[army judge]

 

[Zigner]

Sorry @adjusterjack - I couldn't help myself.