Analyzing Fandom: Cosplay

Continuing the exploration of fandom, and its associated legal snares, we turn to cosplay. Costumed play, cosplay for short, is the hobby, and sometimes profession, of dressing up as a character from fantasy, comics, tv, movies, video games, or any inspirational material. In the past two years, I have prowled local conventions in a custom homemade set of Halo armor,  dressed as Chell from Portal, asAria from Mass Effect, Ray from Ray’s the Dead, and, most recently as Lady Loki, horned helm and all. Cosplay is how I share the things I love with the world, and it’s a much appreciated break from being a law student. Like most cosplayers, my costumes are homemade but are an homage to the creations of others. These creations exist in the world of copyright; cosplays are derivative works.

Copyright does not extend to useful articles; that’s the realm of patents. Useful articles include things like vehicles, other machines, and clothing. Some elements of these things can be copyrighted. For example, the stylized paint job on a truck or the pattern on the clothing can be copyrighted. These things can be separated from the useful article. The shape of the useful article itself, however, cannot be copyrighted – unless it’s the Batmobile. Recently, Warner Bros. challenged a private seller of redesigned cars, cars that looked suspiciously like the 1966 Batmobile, with copyright infringement. Even though cars are useful articles, and therefore not covered by copyright , because the court determined that the Batmobile is a character in the Batman series, not just a car.

Costumes, and to a lesser extent masks, are considered useful articles by the copyright office because they serve the same purpose as clothing; they cover the body and provide warmth. But, based on similar logic, the Batmobile should have been considered a useful article for the same reason cars are useful; they provide transportation. If the Batmobile had acquired enough distinction to be considered a character, recognizable costumes may receive the same treatment. Costumes are perhaps at a greater risk of this move since the goal of a costume is to represent a character. Unlike the Batmobile, a discrete object, a costume is almost exclusively used as part of a persona. As useful as the costume itself may be, the character being portrayed is certainly protected by copyright.

A notable factor of the Batmobile case is that the cars were built to be sold. Profit, or compensation, is used as a factor in considering whether an infringing use of copyright is a fair use. Perhaps more importantly, selling a copyright infringing good makes litigation more likely, even if the good isn’t directly competing with the copyright holder. If a fan is selling costumes, more are likely to appear in the market. The goods may not meet quality standards expected of the copyright holder, thereby damaging their reputation. The copyright holder may have any number of reasons for wanting infringing costumes and goods out of the market.

Similarly, copyright holders may have issue with professional cosplay, where individuals are paid to portray a character. If these cosplayers don’t meet the standards set by, or expected of the company, or are affiliated with actions or views that may impact the copyright holder’s reputation, they have good reason to want to remove the professional cosplayer from the market. Copyright infringement claims and cease and desist letters are the easiest way to handle these market issues.

Patents protect useful articles. There are many types of patents, but design patents cover the design associated with a useful article, for example the shape of a car or the cut of a piece of clothing. Any design that is substantially similar would infringe the design patent, but most individual characters or costume designs in creative works are not covered by design patents. This is in part likely due to the cost of patents and their associated litigation. To patent each character design in a creative work would be extremely expensive. Additionally, each version of a costume would have to be patented to ensure complete protection. Patents are not generally feasible for character protection.

A third type of intellectual property, trademarks, could block some types of cosplay. A trademark designates the origin of goods. Batman originated with DC Comics, so consumers may, and sometimes do, assume anything bearing the Batman logo is from or made with permission from DC Comics. A cosplayer sporting the logo on a homemade costume has no connection to DC Comics short of fandom. Bearing this mark may be confusing to consumers, harm their opinion of DC, or create competition in the market. DC may have a reason to stop the cosplayer. Beyond the logos, some characters may also be subject to trademark registrations, if the character is associated with particular goods or services, such as video games. If you dress up as a well known character, for example Master Chief from Halo, to promote a product or service, and consumers are confused about whether or not 343 is endorsing that service, you’ve infringed a trademark.

The non-legal angle of the situation is that cosplayer are the best advertising. They draw attention by wearing elaborate costumes. They are dedicated to the product and willing to put untold hours into producing a good product. They speak positively of the product and often sell better than the best commission based salesman. While stopping some cosplayers may be necessary on occasion, it’s best to allow the fandom to thrive.

About Suzanne Jackiw

Suzanne Jackiw is an official contributor to Law of the Game. She’s a student at Chicago-Kent College of Law, focused on Business and Intellectual Property issues related to video game law; and, she works as a business intern with several small indie game companies and as a law clerk for The Game Attorney. She has attended many video game development conferences, including Steam Dev Days and the Game::Business::Law Summit. The opinions expressed in her columns are her own. Reach her at Suzanne[dawt]Jackiw[aat]Gmail[dawt]com.

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