September 05, 2012 6:40pm PT by Eriq Gardner
Disney, Warner Bros. Sue Over 'Counterfeit' Costumes
Someone call Commissioner Gordon. Someone is selling Batman's costume without permission.
Warner Bros., Disney and retailer Sanrio have teamed together to stop an Orange County, Calif.-based website from renting and selling counterfeit costumes. The penalty for enlivening childrens' birthday parties with unlicensed costumes including Mickey Mouse, Goofy, Superman, and Hello Kitty? Try as much as $2 million per costume.
The plaintiffs filed the copyright and trademark lawsuit last week. The defendant is Jason Lancaster, who runs what seems to be a pretty basic, cheesy website.
Warners, Disney and Sanrio see it as troubling.
Following litigation by owners of the Power Rangers over Halloween costumes, these entertainment giants are also cracking down on counterfeit costumes.
The new lawsuit says that the costumes "incorporate the Plaintiffs' copyrighted properties."
Maybe not all costumes are equal. The Copyright Act doesn't allow a "useful article" to be copyrighted, but the copyrighting of "pictorial, graphic, or sculptural" elements of clothing is permitted. Insofar as Batman's costume is conceptually separable from its basic element of dress, Warners can protect it. The same rule applies to the Batmobile, which a judge declared may also be subject to copyright.
The plaintiffs ask for statutory damages for copyright violations, meaning up to $150,000 per infringement. They also want an injunction lest they suffer further "irreparable harm."
And to get the message across, the plaintiffs are also suing for trademark violations, arguing that consumers will be likely confused as to the source of origin for these sold and rented costumes. The pricetag for damages in this regard are $200,000 for each trademark infringed, or $2 million if the infringement is found to be willful.
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