Halloween Advertising and Copyright: Can Your Business Use Horror Characters?
A practical guide to movie artwork, character designs, and implied sponsorship for New Jersey businesses.
By Peter J. Lamont, Esq.
Halloween advertising can come together quickly. Someone finds a familiar horror character online, adds the business’s logo, and turns the image into a promotion for a sale or party. Before that graphic goes live, a New Jersey business owner should ask where the artwork came from and what permission supports its use. Finding an image through a search engine does not establish a right to copy it into an advertisement. The intended use and the particular material both matter.
Federal copyright and trademark law can apply even when the promotion is local and runs for only a weekend. A shop in Wyckoff or a Bergen County restaurant may be using the same protected artwork that appears in a national campaign. The size of the business does not answer whether the use is authorized. A useful review begins with the actual advertisement, including its wording, images, and destination page.
A Halloween idea and a particular image are different
Copyright protects qualifying original expression fixed in a tangible medium. It does not extend to ideas or concepts themselves. That distinction appears in 17 U.S.C. § 102. A general idea for a spooky storefront leaves substantial room for original work. Copying a particular illustration, film still, or detailed character image presents a different question because the advertisement may reproduce someone else’s expression.
Under 17 U.S.C. § 106, copyright owners have specified exclusive rights, including reproduction, preparation of derivative works, and public display, subject to the Act’s limitations and exceptions. Placing protected artwork into a promotional graphic can implicate those rights. Changing the background, adding a sales message, or having a designer redraw the image does not establish authorization by itself. The review concerns what protected material was used and how it was used.
Start by obtaining the source file and its licensing information. If a designer supplied the image, ask whether it was original, licensed from a library, or taken from another source. Keep the response and the relevant terms with the campaign records. A discussion with intellectual property counsel is more productive when the exact asset and its source are available. A vague assurance that the picture is “all over the internet” provides little useful information.
Buying a copy does not transfer the copyright
A business may own a movie poster, costume, or other physical item without owning the copyright in the work embodied in it. Section 202 of the Copyright Act expressly separates ownership of a material object from ownership of copyright. Purchasing the object does not, by itself, convey the copyright owner’s exclusive rights. That distinction becomes relevant when a business wants to reproduce artwork from a purchased item in its advertising.
The particular activity still needs review. Displaying an item, photographing it, reproducing its artwork, and adapting it into a new campaign can raise different questions. Do not assume that the receipt for the original purchase answers all of them. Obtain advice about the proposed use and any applicable permission or exception, especially when the character image will become the central visual identifying the event.
For licensed stock images, read the license associated with the actual download. Determine whether it covers advertising, the planned distribution, and the use by your business. Save the terms in effect when the asset was obtained. If an agency handles the campaign, clarify who is responsible for obtaining and documenting the necessary permissions. A review of the marketing services agreement can identify gaps before the business pays to distribute the advertisement.
Fair use requires more than calling the promotion a joke
Fair use is a legal analysis, not a label that makes a promotional image permissible. Under 17 U.S.C. § 107, the factors include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality taken, and the effect on the potential market for or value of the work. Commercial purpose is expressly relevant, but the statute calls for consideration of the circumstances rather than a single-factor shortcut.
A business should therefore be cautious about relying on the fact that its caption is funny or the promotion lasts only two days. Those facts do not, by themselves, establish fair use. The same applies to an attribution beneath the graphic. Identifying the source does not answer the separate question of whether the business may reproduce the material for the proposed purpose.
If fair use is the intended basis for a campaign, have counsel examine the finished advertisement before launch. The image, text, and commercial context need to be considered together. An opinion about a draft illustration may not address a later version that adds a product endorsement or prominently uses the image to sell tickets. Preserve the version actually reviewed and send material changes back for review.
Check whether the ad suggests an official connection
Trademark law raises another concern. Under 15 U.S.C. § 1125(a), certain uses in commerce that are likely to cause confusion about affiliation, connection, sponsorship, or approval can give rise to liability. A promotion can therefore require scrutiny beyond the copyright status of its artwork. The overall message may suggest that a studio, entertainment brand, or other rights holder is associated with the business or event.
Look at the headline and visual presentation as a customer would encounter them. A prominent franchise logo beside the business’s name may communicate something different from a passing reference in an explanatory article. Words suggesting an official event or collaboration deserve particular attention if no such arrangement exists. A disclaimer should not be treated as an automatic solution without assessing the advertisement as a whole.
This matters when a business delegates promotion to a venue or outside agency. Review the public-facing materials rather than assuming another participant cleared them. Ask who approved use of the branding and obtain the supporting authorization. If the parties disagree about what was promised, the underlying communications can become relevant to a separate business dispute.
Use original seasonal imagery and review the final campaign
An original autumn or Halloween concept can give a campaign a strong identity without depending on a recognizable film image. Give the designer a brief describing the mood and the business’s own message. Request source information for any incorporated assets. For commissioned work, document the rights the business is receiving and the uses the agreement permits, including future campaigns if those are contemplated.
Older stories and public-domain material also require care. The relevant version matters. Under 17 U.S.C. § 103(b), copyright in a derivative work extends to the author’s new contribution, rather than granting exclusive rights in the preexisting material. An older source may therefore need to be distinguished from creative material added in a later adaptation. Verify the status of the specific material you intend to use instead of assuming that every modern depiction shares the status of an earlier story.
Before launch, keep one final set of the campaign files, permissions, and approval correspondence. If a demand arrives, preserve those records and have the actual allegations reviewed promptly. Avoid responding from memory about who supplied the image. For a business facing an intellectual property dispute, an accurate account of the material used and the permissions obtained is an important starting point. Planning that record while the campaign is being created also makes the next seasonal promotion easier to manage.
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About Peter J. Lamont, Esq.
Peter J. Lamont is a nationally recognized attorney with significant experience in business, contract, litigation, and real estate law. With over two decades of legal practice, he has represented a wide array of businesses, including large international corporations. Peter is known for his practical legal and business advice, prioritizing efficient and cost-effective solutions for his clients.
Peter has an Avvo 10.0 Rating and has been acknowledged as one of America's Most Honored Lawyers since 2011. 201 Magazine and Lawyers of Distinction have also recognized him for being one of the top business and litigation attorneys in New Jersey. His commitment to his clients and the legal community is further evidenced by his active role as a speaker, lecturer, and published author in various legal and business publications.
As the founder of the Law Offices of Peter J. Lamont, Peter brings his Wall Street experience and client-focused approach to New Jersey, offering personalized legal services that align with each client's unique needs and goals.
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