A Rose Is a Rose Is a Rose--But Is a Costume a Dress?

Malla Pollack, American Justice School of Law

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Abstract

Law differs from life. If a judge, or more importantly a justice, calls a tail a leg, the tail does become a leg. Or, to be precise, the owner of the tail is treated as if he owned a leg. This short essay deals with the changeable meaning of the words "utilitarian function" and "useful article" in the Copyright Act. To be specific, is the Eastern District of New York correct in grouping a Halloween costume with a dress, rather than with a nose mask? This absurd question, timely reraised just after Halloween, is another chimera in the horror house of the Copyright Act--an outcome of the unrealistic congressional distinction between unprotected industrial designs and protected works of applied art. The first section supplies the statutory background; the second tells the ghost story of Whimsicality, Inc. v. Rubie's Costume Co.; the third supplies an alternative solution.