Is Cosplay Really a Crime?

Over the past few weeks, the online geek community has been in a tizzy over a court case involving, of all things, cheerleading uniforms. The case involves Star Athletica, LLC and Varsity Brands, Inc. – both designers of cheerleading uniforms – who have been battling it out in the lower courts whether said cheerleading uniforms are eligible for federal copyright protection. After clashing all the way up to the Sixth Circuit Court of Appeals, the case may now be headed to the Supreme Court. So what does all this have to do with cosplay?

COSPLAY GOES TO SUPREME COURT

COSPLAY’S FATE MAY REST WITH SUPREME COURT

SUPREME COURT MAY DECIDE IF COSPLAY IS A CRIME

CAN COMPANIES CRIMINALIZE COSPLAY?

All of these headlines have appeared online in the past few weeks, alerting cosplayers to the Star Athletica vs. Varsity Brands case and stating that this case could, in fact, decide the fate of the hobby. But can a case involving cheerleading uniforms truly dictate the fate of cosplay?

So, what is this case about again?

Basically, Varsity Brands, Inc. got their feathers ruffled when Star Athletica, LLC created a cheerleading uniform very similar to one of theirs. Are they too similar? Judge for yourself in these photos, directly from the court documents.

Star vs Varsity pics

Varsity Brands took Star Athletica to court, claiming that the new design violated its copyright by being too similar. Star Athletica argued that the design was not copyrightable because the uniforms are “useful articles,” which means they were designed for utility, not art. They also argued that the copied/similar elements are neither physically nor conceptually separable from the “useful article” of the clothing itself.

This case got all the way up to the Sixth Circuit Court of Appeals, which ended up ruling in favor of Varsity Brands, stating that they’d successfully registered the designs with the copyright office and equated the designs to fabric patterns, stating that they’re protected by copyright. Star Athletica in turn prepared a writ of certiorari to have the case heard by the Supreme Court.

So, what does this have to do with cosplay again?

That’s the question at hand. The fear is that if the Supreme Court rules in favor of Varsity Brands that designs are in fact copyrightable, this would set a precedent for companies to start suing cosplayers who are “copying” their designs. To understand how this could affect cosplay better, let’s take a look at the laws.

Things to know about the laws/current precedent

  • Copyright protects creative works, not “useful articles,” which are items designed for utility. Copyright protects the artwork. It does not protect the paintbrush.
  • Courts have historically treated clothing as “useful articles.”
  • Copyright law is purposefully vague due to the constantly evolving nature of art, design, and technology.
  • Design copyrights typically cover functional and/or unique design elements that are separable when viewed apart from the “useful article” itself. This means that in order for an article of clothing to earn copyright protection, you must add something to it so unique that it revolutionizes the article of clothing itself. This is VERY difficult to do.
  • Since 2006, some members of Congress have lobbied to extend copyright protections to fashion designs, which would allow designers to copyright entire outfits as “works of art.” All of these efforts have failed.
  • Typically, cosplay costumes are unique, meaning that the creator of the costumes adds their own flair to it. This gives cosplayers some breathing room within established copyright law.
  • The ruling in the Star Athletica vs. Varsity Brands case will have no impact on what people create for themselves. It will only impact those who create and then mass produce and sell those creations.
  • Copyright has a “fair use” aspect, which permits limited use of copyrighted material without having to ask for permission if certain conditions are met.
  • This case will have zero impact on fair use, which gives cosplayers another out if they do in fact get sued.

Tell me more about this “fair use” stuff

So, let’s pretend for a few minutes that you’re a cosplay hobbyist who is sued. You could claim “fair use,” which, as stated above, means that you can use copyrighted material without having to ask for permission if you meet certain conditions. Those conditions are:

  1. Purpose/Character: What’s the purpose of the work? Is it for commercial use/mass production sales? In cosplay, the purpose is not typically for commercial use. Normally, it’s for personal or nonprofit, and usually the hobbyist adds additional elements to the original design.
  2. Nature of the Copyrighted Work: Is the work fictional or factual? Usually, cosplayers are deriving their costumes from fictional works, which in this case, works against them.
  3. Amount/Substantiality: Exactly how much of the original work was copied? In parodies, there’s more leeway to this, but the substantiality of cosplay is usually arguable unless you’re 100% accurate in your depiction.
  4. Effect Upon the Original Work’s Value: Does your use of the work deprive the owner of the copyright of income? This is usually the most important element of fair use. If you’re creating the cosplay for your own personal use, in normal cases, you’re not depriving the owner of the copyright of any income. Even if costumes of the character you’re portraying are available in stores, you’re likely adding elements to it that make it unique and different from what you could buy in a store. Therefore, you’re not depriving the copyright owner of any value.

Okay, so for real, do cosplayers have anything to worry about?

Most likely not. First of all, the cited case involves cheerleading uniforms, not costumes. And even if it did affect costumes as well, before a court could rule against cosplayers, they must consider all of the elements of fair use and whether the cosplayer’s use of the costume negatively affected the original work. This would need to be judged on a case-by case-basis, and it would be way too difficult to serve cease and desist letters to every homemade Storm, faux Wonder Woman, and handcrafted Ms. Marvel on the planet. Cosplay is way too widespread to litigate effectively.

Also, the vast majority of cosplayers are doing so because of their own personal interest. They aren’t making a profit from their work, and their costumes rarely affect, much less negatively affect, the source material at all.

At the end of the day, what is and isn’t fair use is up to the courts to decide, meaning that the cosplayer would have to be sued by the copyright holder and taken to court. So the biggest question is: do you REALLY think Marvel cares that you made a Black Widow costume enough to take you to court? Probably not.

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