Creativity abounds as household items are incorporated into Halloween costumes; however, use common sense and pay attention to intended uses and warnings on everyday items that you use in your costumes. Courts are not always very sympathetic to costume-related injuries because, products are often used in ways that were not expressly intended when incorporated into costumes.
For example, did you know that some cotton balls are highly flammable? Little Bo Peep and her husband (who unfortunately for him was dressed as a sheep at a Halloween party) discovered this in a matter of seconds when he lit a cigarette and was quickly engulfed in flames. The sheep costume was made by gluing cotton balls all over a pair of long underwear (from his head to ankles)… and neither Little Bo Peep nor her husband-sheep had any idea how quickly cotton balls would burn if caught on fire.
Ultimately the court held that making a sheep costume with cotton balls was outside of the intended, medicinal uses of the product and therefore a failure to warn was not the proximate cause of the man’s injury.
[an intellectually property law post script relating to costumes… is that original costumes, like the elaborate feather costumes and headdresses worn by Mardi Gras Indians are eligible for copyright… as sculpture and works of art. This applies to elaborate galactic, warrior costumes… like Stormtroopers too.]
This case is: Ferlito v. Johnson & Johnson, 1992 U.S. App. LEXIS 34781; see also, Case Law From the Crypt: The Law of Halloween by D. Moar in the October, 2011 issue of the NYSB Journal.
BY: Vanessa Kaster, Esq., LL.M.
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