There's something wonderfully democratic about Halloween. Children can become their heroes, adults can poke fun at familiar public figures, and families can make costumes from old clothing, cardboard and whatever they can find in the sewing box. Much of the pleasure comes from recognizing the person behind the costume. A child doesn't have to announce that they're dressed as a particular superhero because the colours, clothing and familiar emblem usually tell the story. The person who spent three evenings recreating a favourite movie character probably regards the result as an expression of affection, creativity and considerable patience.
Tomorrow evening, Canadian neighbourhoods will fill with witches, superheroes, movie villains and characters whose names some parents won't recognize. Sometimes the costumes will be elaborate reproductions, while others will be deliberately ridiculous and borrow just enough of a recognizable character to make the joke work. The tradition depends on a shared understanding of popular culture, and very little of that culture belongs entirely to the people wearing it.
Intellectual property law complicates this arrangement because many recognizable characters, symbols and costumes belong to someone else. The characters and their visual designs may be protected by copyright, while names, logos and other distinctive commercial signs may be protected by trademarks. Companies invest in creating and licensing those rights, including agreements with manufacturers producing official costumes, masks and accessories.
A homemade costume worn at a Halloween party doesn't ordinarily put someone in the same legal position as a company selling thousands of unauthorized replicas. That difference is understandable in everyday life, but the law reaches it through distinct principles that aren't always intuitive. Wearing a familiar character, copying an illustration, selling a costume and making fun of a famous brand may engage different rights even when all four activities involve the same recognizable image.
The trademark behind the mask
Trademark protection exists because consumers need to distinguish the products and services of one business from those of another. A trademark may consist of a name, logo, design, shape or another distinctive sign that identifies a commercial source. Registration provides important rights under Canada's Trademarks Act, including protection against certain uses likely to cause confusion.
Consider a manufacturer selling costumes associated with a popular film character. A customer might be perfectly happy buying an unofficial version if they know what they're purchasing. But if the manufacturer uses a registered character name, an official logo and packaging suggesting approval from the film studio, the legal question becomes more serious. The relevant issue is whether the commercial use infringes the owner's rights, including whether consumers are likely to be confused about the source or connection between the businesses.
Recognition and confusion aren't the same thing. Someone wearing a homemade costume based on a famous character might be instantly recognizable to everyone at a party. That doesn't mean the wearer is using the character's trademark to identify goods or services in the marketplace.
Sections 4 and 20 of the Trademarks Act help explain the difference. Section 4 addresses when marks are used in association with goods or services, while section 20 addresses particular commercial dealings involving confusing trademarks. A child wearing a superhero emblem while collecting candy ordinarily isn't offering competing products under that emblem. A manufacturer advertising hundreds of costumes using another company's branding may be doing exactly that.
The legislation also offers protection against certain uses likely to depreciate the goodwill associated with a registered mark. Section 22 can operate without proof of consumer confusion, although the claimant still has to establish the statutory requirements. In Veuve Clicquot Ponsardin v. Boutiques Cliquot ltée, 2006 SCC 23, the Supreme Court explained the significance of commercial trademark use, established goodwill, a mental association between the marks and a likely adverse effect on that goodwill. The champagne producer ultimately failed to establish its claim against the boutiques.
For Halloween, the reasoning helps distinguish a recognizable reference from actionable commercial misuse. A joke about a famous brand doesn't automatically infringe its trademark, but the absence of confusion isn't a complete answer to every possible claim. How the mark is used and the effect on its goodwill can also matter.
Parody makes the relationship especially interesting because a joke often depends on making the reference unmistakable. If a costume ridicules a famous corporate mascot, the joke succeeds because everyone recognizes the mascot. The very recognition that makes the criticism effective can also prompt questions about the protected commercial identity being borrowed.
When copying becomes criticism
Canada expressly recognizes parody and satire under section 29 of the Copyright Act. Since amendments introduced in 2012, fair dealing for either purpose can provide a defence to copyright infringement. That's an important protection for creative expression, although describing something as parody doesn't end the analysis. The dealing must serve an allowable purpose and be fair in its particular circumstances.
The Supreme Court provided the familiar framework in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. Courts may consider the purpose and character of the dealing, the amount taken, available alternatives, the nature of the original work and the effect on its market. These considerations aren't an automatic checklist in which a certain number of favourable factors guarantees success. The analysis requires judgment about what was actually copied and why.
Parody creates an interesting tension because the audience often needs to recognize the original. A costume criticizing the exaggerated masculinity of a famous action hero might require enough familiar visual details for people to understand the criticism. Removing every recognizable element could destroy the joke, while copying more than the joke requires may create a different legal problem.
Canadian courts have considered related questions even though the principal decisions weren't about conventional Halloween costumes. In United Airlines, Inc. v. Cooperstock, 2017 FC 616, the Federal Court examined a consumer complaint website called UNTIED.com. Its operator used a name and website presentation intended to evoke United Airlines while criticizing the airline and allowing people to share complaints.
The Court accepted that the site had a parodic purpose. The website borrowed recognizable elements of the airline's online presentation in order to mock it, bringing the use within an allowable purpose under the Copyright Act. The defendant nevertheless failed to establish fair dealing. The Court considered the amount copied, the purpose and manner of use, and evidence of confusion arising from the website's presentation, among other considerations. It also found trademark infringement on the record before it.
The defendant's critical intention didn't erase the difference between a genuine parody and a presentation that closely reproduced another business's protected material. Nor did the absence of an ordinary sale of airline tickets necessarily remove the website's provision of services from trademark analysis. The facts and the rights asserted mattered considerably more than the simple description of the site as a joke.
An older Canadian dispute involving a cartoon character reveals a related distinction. In Compagnie Générale des Établissements Michelin v. CAW-Canada, [1997] 2 FC 306, a labour union reproduced modified versions of the Michelin Man during an organizing campaign. The familiar character appeared in materials criticizing the employer, including an illustration depicting him threatening a worker.
The Federal Court rejected the trademark infringement theory because the union hadn't used the marks in the commercial manner required under the legislation. Its organizing material wasn't advertising competing tires or using Michelin's branding to identify its own commercial products. But the union lost on copyright, with the Court finding that protected artistic expression had been copied and that the statutory defence available at the time hadn't been established.
That judgment predates Parliament's express addition of parody and satire to section 29 in 2012. It therefore can't be treated as conclusively deciding how those newer provisions would apply if precisely the same conduct occurred today. Its lasting relevance is that trademark and copyright law protect different interests. Successfully defending one claim doesn't necessarily dispose of another arising from the same image.
These decisions make a political Halloween costume especially interesting. Someone might dress as a corporate mascot to criticize the price of groceries or use an exaggerated version of a famous character to make a point about popular culture. The expressive purpose matters, but the person still needs a proper legal basis for any protected material they've reproduced. Humour may explain why the material was borrowed without automatically establishing that every aspect of the borrowing was lawful.
The costume you make and the costume you sell
A parent making a costume for a child is generally in a very different practical position from a manufacturer producing hundreds of replicas for commercial sale. Canadian copyright law recognizes some distinctions between private creativity and commercial exploitation, although the relevant exceptions have conditions that shouldn't be overlooked.
Section 29.22 of the Copyright Act provides a limited exception for reproductions made by individuals for their own private purposes. Among other requirements, the source copy must have been lawfully obtained, technological protection measures mustn't have been improperly circumvented, and the reproduction mustn't be given away. The exception isn't a universal permission covering every homemade costume, but it may matter if someone reproduces qualifying material privately.
Section 29.21 recognizes another form of creativity. It permits certain noncommercial uses of previously available protected material in the creation of a new work, subject to specific conditions. Those include an exclusively noncommercial purpose, attribution where reasonable, reasonable grounds to believe the source wasn't infringing and no substantial adverse effect on the original work's exploitation or market. The provision doesn't automatically protect every online costume video merely because its creator isn't employed by a costume company.
The differences become more important when the costume moves beyond personal enjoyment. Someone who makes an outfit for a neighbourhood party may be exercising an ordinary cultural practice involving little legal concern. If that person starts manufacturing replicas, advertising them online and accepting orders, the original visual design, character names, labels and representations made to purchasers may become relevant.
Handmade doesn't necessarily mean private once a product is being sold. Changing a name doesn't necessarily avoid copyright infringement if the design still takes a substantial part of protected expression. Conversely, a costume that draws on a general idea or familiar theme may be original enough that no protected expression has been taken at all.
Canadian law also treats some useful articles differently from other artistic works. Section 64 of the Copyright Act limits copyright protection for certain designs applied to useful articles once more than 50 articles have been reproduced with the necessary authorization. But the section contains exceptions, including for certain graphics, trademarks and representations of real or fictional beings applied to articles. It would therefore be a mistake to assume that making more than 50 costumes makes every recognizable character design freely available for copying.
A case already examined in Binder Intelligence is helpful here. In Cinar Corporation v. Robinson, 2013 SCC 73, the Supreme Court considered whether a later animated television production had copied a substantial part of an earlier creative work. The dispute involved characters, visual designs and the particular arrangement of elements that gave the original project its expressive identity.
The Court rejected the idea that every familiar component could be separated, dismissed individually as unprotectable and thereby removed from the comparison. Copyright doesn't protect an abstract story idea or every conventional feature of a genre. The particular selection and combination of expressive elements may nevertheless constitute a substantial part of an original work.
Cinar wasn't a costume case, but its reasoning helps explain why a few cosmetic changes don't necessarily resolve a dispute about an unmistakably copied character design. The opposite is equally important. A generic witch, ghost, robot or vampire remains a theme available to everyone. The owner of one particularly famous fictional vampire doesn't acquire a monopoly over every person who wants to wear a cape and plastic fangs.
The banana suit that reached an appeal court
One of the most entertaining costume disputes comes from the United States, where two businesses litigated over a full body banana costume. In Silvertop Associates Inc. v. Kangaroo Manufacturing Inc., 931 F.3d 215 (3d Cir. 2019), the manufacturer of a banana costume sold under the Rasta Imposta name alleged that a competitor had copied its design.
The dispute raised a genuine question about the copyright protection available to clothing. The manufacturer couldn't claim exclusive ownership of the idea of dressing as a banana. It had to identify artistic features of its particular costume that qualified for protection under American law independently of the item's usefulness as something to wear.
The United States Court of Appeals for the Third Circuit concluded that the costume's combination of colours, shape, lines and proportions contained artistic sculptural features capable of copyright protection. The holes for the wearer's face and limbs weren't independently protected artistic elements because they served the costume's utilitarian function.
The court also considered whether protecting that particular design would effectively prevent other people from making banana costumes. It concluded that the idea remained widely available because there were many different ways to represent a banana. The evidence included more than 20 alternative designs that weren't alleged to infringe.
The decision arose on an appeal concerning a preliminary injunction. The court affirmed the determination that the claimant was reasonably likely to establish a valid copyright. It wasn't a final Canadian decision that every banana costume must be licensed, and Canada's legislation approaches useful articles differently.
Still, its practical reasoning is accessible. People can dress as bananas without copying one manufacturer's distinctive artistic design. Copyright protects original expression within its statutory limits, even when the original expression happens to resemble something found in a supermarket.
Two Scary Terrys and two kinds of identity
There's another Scary Terry worth meeting before turning to the basketball merchandise dispute. In Rick and Morty's 2013 episode Lawnmower Dog, Rick and Morty encounter a dream-invading killer with a burned face, striped sweater, battered hat and blades projecting from his fingers. Adult Swim acknowledges that the resemblance to Freddy Krueger is intentional. The show even describes him as a legally safe imitation, supposedly distinguished by miniature swords instead of knives. James McDermott, who worked on the episode's character designs, has discussed making that deliberate alteration. The joke works because almost everyone knows what the character is borrowing, notwithstanding the supposedly protective change.
The writers do more than reproduce a frightening appearance. Terry starts as a familiar nightmare villain but eventually becomes a surprisingly vulnerable character whose anxieties about school and ordinary family life transform the audience's understanding of him. That development gives the parody something to say about the original horror convention. Whether it supplies a sufficient copyright defence is a separate legal question requiring an assessment of the protected expression, the purpose and extent of the borrowing, and the governing law. A joke about being legally safe isn't itself a legal defence.
There's also the actor behind the original character. Robert Englund's performances gave Freddy a recognizable appearance and personality, raising the possibility of another kind of claim beyond copyright in the fictional character. Canadian courts have recognized that the commercial exploitation of an identifiable real person's image can, in appropriate circumstances, amount to appropriation of personality. In Athans v. Canadian Adventure Camps Ltd., 1977 CanLII 1255 (ON SC), an athlete recovered damages after a business reproduced an identifiable stylized image of him in promotional material without authorization. The court was concerned with the commercial value of the athlete's personal identity, a distinct interest from the copyright in a fictional work.
That distinction also shows why invoking an actor's likeness isn't automatically the correct analysis for Scary Terry. The Rick and Morty character is animated and voiced by Jess Harnell. It recreates features audiences associate principally with Freddy, rather than presenting an advertisement that claims Englund's personal endorsement. Any likeness claim would require its own facts about whether the performer is identifiable and whether his identity has been improperly exploited. The more immediate intellectual property questions concern the original character's protected design and any trademark or licensing rights, which may be held or controlled by parties other than the actor.
I couldn't identify a documented lawsuit, cease-and-desist demand or public objection from the Nightmare on Elm Street rights holders directed at Scary Terry. That doesn't establish that there were no private discussions or that permission was obtained. What is documented is Englund's enthusiasm. In 2019 and May 2020 interviews, he praised the parody and described fans bringing him Scary Terry memorabilia to sign. Funko also announced a Scary Terry figure as part of its Rick and Morty collection in 2017. Neither the actor's approval nor authorization within that merchandise collection establishes the existence of every licence that another rights holder might otherwise require.
The coincidence becomes especially entertaining when we return to the other Scary Terry. Basketball player Terry Rozier's nickname became prominent in 2018, five years after Rick and Morty introduced its character. Rozier's later merchandise borrowed the Ghost Face mask from Scream, while the television parody borrowed recognizable features of Freddy Krueger. The two uses involved different original works and different potential claimants. Their shared nickname wasn't the subject of the reported Rozier litigation, but they illustrate how familiar horror imagery can engage copyright, trademark and sometimes personal likeness interests along separate legal paths.
When the joke becomes a commercial product
Another American case provides an equally useful example of the way parody can survive commercial use.
In Easter Unlimited, Inc. v. Rozier, No. 18-CV-06637 (E.D.N.Y., September 27, 2021), professional basketball player Terry Rozier faced claims concerning merchandise depicting a cartoon version of himself wearing a mask resembling the Ghost Face mask associated with the Scream films. Rozier's nickname, Scary Terry, made the visual reference part of a joke about his on court persona.
Easter Unlimited asserted copyright and trademark rights associated with the mask. The court assessed the merchandise under American copyright fair use principles and concluded that Rozier's use qualified for protection. It considered the humorous transformation of the mask, the particular context involving basketball and Rozier, the amount borrowed and whether the merchandise would substitute for the original market. Rozier obtained summary judgment on the claims before the court, including the trademark claims, under the distinct applicable analyses.
The merchandise was sold commercially. The court didn't regard that fact as automatically defeating the copyright defence. Instead, it examined what the new image communicated, why the recognizable mask mattered and how the use affected the original rights holder's interests.
The decision doesn't permit costume manufacturers to reproduce identical Ghost Face masks without authorization. Nor does it establish a Canadian defence. The United States applies a statutory fair use framework, while Canada's fair dealing system requires one of the specified allowable purposes and a separate assessment of fairness. Both systems account for context, but their rules and judicial authorities aren't interchangeable.
Taken together, the banana costume case and the Scary Terry case show why commercial purpose can't provide a complete answer. In one dispute, a commercial manufacturer successfully defended the copyright eligibility of a particular costume design at the preliminary injunction stage. In the other, a commercial seller successfully defended a humorous use of familiar costume imagery. The conduct, the protected interests and the legal questions were different.
The distinction also helps explain why the word parody shouldn't be treated as a decorative label that makes infringement disappear. A costume seller advertising an almost identical replica isn't necessarily engaging in criticism merely because its product description contains a joke. But a genuine creative parody doesn't cease to be expressive simply because someone receives money for it.
Halloween belongs to more than its rights holders
Popular characters acquire their cultural importance through the people who watch, imitate, discuss and celebrate them. A fictional character becomes recognizable because audiences connect with it, create jokes about it and share that enthusiasm with other people. Homemade costumes are one of the ways those relationships with culture become visible.
The creators and businesses behind those characters are entitled to the protection that Canadian law provides. Those rights can support authors, illustrators, filmmakers and the manufacturers that invest in bringing official products to market. Licensing also allows people to commercialize creative work without having every subsequent business reproduce it freely.
But ownership of intellectual property doesn't necessarily amount to ownership of every cultural conversation inspired by it. Parody plays a particular role because it allows people to criticize, exaggerate and question familiar images. The resulting joke can be affectionate or hostile, clever or ridiculous. Sometimes a costume is simply an expression of admiration. At other times, the familiar identity becomes the language through which someone comments on the character, the business behind it or the society that made it famous.
Canadian law recognizes expressive interests while continuing to protect original artistic work and the goodwill associated with trademarks. The distinction between wearing a costume privately and selling copies commercially is often important, although it isn't always conclusive. Some commercial parodies may be defensible, while some noncommercial uses may still take more protected material than the law permits.
For most Canadians getting ready for Halloween, none of this needs to become an exercise in legal risk assessment. They're participating in a familiar tradition that invites imagination and humour. Costume manufacturers and sellers have more to consider because their product designs, packaging and advertising can engage overlapping legal rights. Even then, the law shouldn't be mistaken for a guarantee that every familiar visual theme belongs exclusively to an established rights holder.
Tomorrow someone will arrive at a party wearing a costume assembled from old clothing, cardboard and an astonishing amount of adhesive. It might be an affectionate tribute to a favourite fictional character or an elaborate joke about a brand everyone recognizes. Its success will depend on other people understanding the reference, which helps explain why Halloween remains such a lively part of shared culture.
Intellectual property law gives creators meaningful rights over their work while leaving room for others to respond creatively to it. Halloween offers a particularly enjoyable setting in which to understand why both interests matter, even when the dispute involves something as apparently harmless as a banana suit.
Nora Bennett is a fictional Binder Humanities editorial persona. Her byline identifies a consistent Culture editorial voice developed and reviewed by Binder, not an independent human journalist or contributor.
Canadian legislation and decisions govern the discussion of Canadian law. The American costume decisions are comparative examples and aren't binding in Canada. This editorial draws on Binder Intelligence's existing analysis of Cinar Corporation v. Robinson and Canada's copyright exceptions.