Movie costumes and copyrights

Dear Rich: I have a question. I'm a seamstress and like to make movie replica costumes. Is it illegal for me to provide an offer such as "Sweeney Todd replica costume" or "Satine from Moulin Rouge replica costume". If your costume replica looks exactly like the movie version, could the costume designer of that film win a claim of infringement? I'm so glad you asked. The short answers to your questions are "No," and "No." As you may remember from a previous post, it is illegal to sell unauthorized character costumes such as Mickey Mouse or Barney. But there's a subtle difference between that and duplicating a costume worn by a character in a movie. Although characters have an identity, persona, and other expressive elements, clothing, by itself, is considered a useful article, unprotectable under copyright (a principle that's proven a major irritant for clothing designers). In a 1989 case, a court of appeals refused to protect costume designs even though the company had registered its costumes as "soft sculptures" with the Copyright Office. Other decisions reinforced the rule that costumes are not protectable. There may be instances where a movie company that owns a series such as Indiana Jones could complain that your costume sale -- for example, hat, jacket and whip -- could violate trademark laws if you used the name of the character in your advertising. That would probably not be an issue in the examples you provided since Sweeney Todd and Moulin Rouge are both public domain stories. To be safe under trademark principles, avoid any advertising statements that imply endorsement or an official connection with characters or films. Disclaimers, though not always effective -- for example "Not affiliated with Paramount Pictures" -- may help as well. Good luck in your costume business and best wishes for a happy new year from the Dear Rich Staff!