Copyrightability of Jack-O-Lanterns

Copyrightability of Jack-O-Lanterns

It’s the spookiest time of year – ghouls and goblins abound, and candy threatens to expand our waistlines. 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. On front porches, pumpkin carving traditions flourish, with spooky expressions sometimes depicted on the season’s orange gourds. 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

The jack-o-lantern originates from ancient traditions brought to the United States by Irish immigrants. In Ireland, a myth about Stingy Jack sparked people to begin carving scary faces onto various produce. 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. 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. The tradition moved onto pumpkins when the Irish immigrated to the United States, where pumpkins are native and plentiful.

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. Often, they included just holes for eyes and a slashed mouth with stubby little teeth. 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. 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 putting aside that fact, could this classic face have been protected by copyright law?

Copyrightability of Jack-O-Lanterns

U.S. copyright law requires a work to be (1) original and (2) fixed in a tangible medium for it to be protected. First, we must determine whether this kind of pumpkin carving would qualify as copyrightable subject matter under section 102 of the Copyright Act. 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. 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.

Since a jack-o-lantern carving is copyrightable subject matter, we explore the first copyrightability requirement of originality. 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. So, while an interpretation of a jack-o-lantern with a simple shape (like a heart) cut out of it would not meet this threshold, there certainly are other jack-o-lanterns and lantern-like pumpkin carvings that exemplify the type of creativity protected by copyright. In fact, there are competitions around the country every year to encourage creativity in this seasonal squash carving. As for the traditional triangle eyed-jagged smile lantern, other doctrines of copyright law might be able to provide clues as to whether the regular jack-o-lantern would be sufficiently original.

Scènes à faire

We can look to several copyright law concepts, such as the scènes à faire doctrine, to help narrow the pool on what types of jack-o-lanterns could satisfy the originality requirement. Scènes à faire typically refers to elements in a work, like a book or film, that are almost obligatory for the work’s genre or the particular setting in which the story takes place. There’s an expectation that some pumpkins be carved in the traditional manner each year, and so those that are simply triangle eyes and nose and jigsaw mouths would not qualify as original for copyrightability purposes. Further, the Copyright Office’s Compendium states that works that are simply “[c]ommon patterns… geometric figures and shapes,” or simple arrangements of such unprotectable elements are not registrable. So, the triangle eyes and choppy smile are too simple and common patterns, as seen every Halloween from actual pumpkins to costumes and décor. But mixing up these traditional elements may result in a jack-o-lantern that is sufficiently creative to be offered protection, like changing the eyes to other shapes or figures and carving the smile differently to achieve the originality requirement. Though, there may be only so many ways to carve a face on a pumpkin— which brings us to the next copyright concept to consider.


The merger doctrine— which denies copyright protection where an underlying idea and expression are inseparable, or when an idea can only be expressed in a limited number of ways—may also affect the copyrightability of jack-o-lanterns. While some may argue that there are only so many ways to carve a scary face into a pumpkin, research shows that there are vast categories of art styles and depictions of spooky characters that can be represented in a jack-o-lantern. For example, both 3D and 2D carvings are possible, hyperrealism and caricature can contribute to the aesthetic quality, and size and shape can contribute to the impact of the expression. There are only so many ways to carve a face, but that is true for painting and sketching as well, and artists never seem to run out of new ways to depict facial expressions. As a result, the merger doctrine likely would not be much of an impediment to the copyrightability of many jack-o-lantern designs.


A tougher question is whether a jack-o-lantern is a sculptural work that is sufficiently “fixed” in a tangible medium? This can be a tricky question because a pumpkin doesn’t last forever— trick-or-treaters can smash it, dogs and other animals can eat it, and if the jack-o-lantern survives all conditions, mold and other natural forces will eventually decompose it.

The Copyright Act requires the work’s fixation to be, “sufficiently permanent or stable… [for] more than [a] transitory duration.” Depending on the way the carved pumpkin is stored, it can last from three to fourteen days. There are ways to further preserve it, such as freezing or casting in resin, but for the purposes of this inquiry, let’s consider whether the “organic” life of a pumpkin is “fixed” for copyrightability purposes.

In Kim Seng Co. v. J&A Importers, Inc., one California district court held that a bowl of food was not sufficiently fixed enough for protection, because “once it spoils, [it] is gone forever.” While the same is true for a pumpkin, a bowl of food left outside may last 24-36 hours at most, while a pumpkin can last up to two full weeks. With appropriate care practices, such as storage in a cool, dry place, a carved pumpkin would far outlast a bowl of food and be sufficiently “fixed” for copyrightability purposes.

In another case discussing the fixation requirement, the 7th Circuit court in Kelley v. Chicago Park District found that an artist’s flower bed arrangements were not sufficiently fixed to be copyrightable. The Kelley court found that the living nature of the flowers inherently required change as the flowers would bloom and die. The difference between the garden in Kelley and jack-o-lanterns is the static nature of the orange gourd medium (unless we’re talking about Linus’ Great Pumpkin). Jack-o-lanterns may decompose over the course of a week or so, but they do not change (germinating, growing, blooming, lying dormant, and dying) in the same way the Kelley garden did.

Thus, because a jack-o-lantern can last for a lengthy amount of time, and, decomposes in a reasonably predictable way (molding, sagging, collapsing) instead of undergoing a series of dynamic life cycles like a garden, it meets the fixation requirement for copyrightability purposes.


Though the humble Irish tradition was rooted in fear of a mythical figure, it has taken on a life as a festive tradition that results in jack-o-lanterns being copyrightable in some instances. So, if your spooky sculptures this Hallows Eve are important to you, you may even consider registering your pumpkin with the U.S. Copyright Office, before the dogs, trick-or-treaters, or mold gets to it.

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