Halloween Copyright a Trick; No Treat for Mask Maker
Shannon P. Duffy

October 31, 2000 - Just in time for Halloween, a federal judge has resolved a dispute over the legal rights to market a mask inspired by the one worn by the killer in the 1978 horror classic "Halloween," ruling that the copyright on the mask is invalid because it lacks the "requisite originality."

In his 27-page opinion in Don Post Studios Inc. v. Cinema Secrets Inc., U.S. District Judge Eduardo C. Robreno also ruled that the plaintiff's "trade dress" claim failed because the mask has not acquired "secondary meaning."

Don Post Studios was the creator of the prototype of the mask worn by the character "Michael Myers" in a series of "Halloween" films.

But Robreno found that DPS did not claim or reserve any rights to the mask.

In 1986, DPS began marketing a mask called "Don Post the Mask," that bore a strong resemblance to the one worn in the movie.

But in 1999, Cinema Secrets obtained a non-exclusive license from the movie makers to begin producing a "Michael Myers" mask.

Robreno found that the ultimate factual issue to be decided by the court was "who copied which mask from whom and, if so, when did the copying take place."

In 1981, DPS requested a license to market the original mask from the first Halloween movie, but the movie makers denied the request.

Robreno found that when DPS ultimately applied for a copyright on its later version of the mask, it did so more than five years after the work was created. As a result, Robreno said, the copyright is invalid.

Turning to the question of whether Cinema Secrets directly copied the mask, Robreno said he found it "simply not credible" that DPS made no reference to the "Halloween" movie when it created the mask it currently markets.

The marketing of the mask showed the connection to the movie, Robreno said, since the model in the ad is holding a knife in "a threatening manner," similar to the movie character.

Because the second version is a copy of the one used in the movie, Robreno said the copyright was invalid.

Robreno also concluded that Cinema Secrets "independently created" its licensed version of the mask based only on photographs and a video of the movie.