![]() ![]() Generally, the threshold necessary to satisfy the originality requirement is relatively low and only requires that the work was independently created and that it has a “modicum” of creativity. Since a jack-o-lantern carving is copyrightable subject matter, we explore the first copyrightability requirement of originality. The same elements of originality would be required of 2D sketches, and it’s easier to see how a sketch on paper or another medium would be “fixed” to satisfy the second copyrightability prong. A jack-o-lantern would most likely be deemed a sculptural work under 102(a)(5), since it is a “three-dimensional work of fine, graphic, and applied art.” Sketches of jack-o-lanterns would also qualify under 102(a)(5) as “pictorial” or “graphic” works. First, we must determine whether this kind of pumpkin carving would qualify as copyrightable subject matter under section 102 of the Copyright Act. copyright law requires a work to be (1) original and (2) fixed in a tangible medium for it to be protected. ![]() ![]() But putting aside that fact, could this classic face have been protected by copyright law? Copyrightability of Jack-O-Lanterns The expressions carved into those jack-o-lanterns, if they were works of copyrightable expressions, are far too ancient to be protected by copyright law, and now reside in the public domain. But, evidence of the classic face with smiling eyes and a jagged smile that we associate with jack-o-lanterns today dates back almost 100 years. Often, they included just holes for eyes and a slashed mouth with stubby little teeth. So where did that iconic jack-o-lantern face, with triangle eyes and nose and the jagged mouth, come from? Originally, the faces carved into Irish turnips were more rudimentary than the classic face we associate with pumpkin carving today. The tradition moved onto pumpkins when the Irish immigrated to the United States, where pumpkins are native and plentiful. So, Jack was sentenced to roam the Earth forever, and Irish people began to carve scary faces into turnips to keep Jack away from their doorsteps around All Hallows’ Day, which honors the dead. Stingy Jack was supposedly a man who conned the Devil so many times that, eventually when Jack died, neither God nor the Devil would accept him into their kingdoms. In Ireland, a myth about Stingy Jack sparked people to begin carving scary faces onto various produce. The jack-o-lantern originates from ancient traditions brought to the United States by Irish immigrants. All of these seasonal decorations make you wonder – does copyright protect Halloween decorations-and more specifically, is a jack-o-lantern copyrightable? Jack-O-Lantern Tradition and History On front porches, pumpkin carving traditions flourish, with spooky expressions sometimes depicted on the season’s orange gourds. In the grocery store, pumpkin flavoring and packaging jumps out in every aisle-the iconic toothy grin and triangular eyes of the classic jack-o-lantern crowd the shelves. It’s the spookiest time of year – ghouls and goblins abound, and candy threatens to expand our waistlines. ![]()
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