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Is Cosplay Copyright Infringement?

by Justin Sevakis,

Chris asked:

Following up on your column from earlier this week, you said most fan works are copyright violations. What about cosplay? I've heard that some creators don't like their characters being cosplayed. Is it possible that they can sue the fans that dress up as their characters?

Legally, cosplay is pretty much a gray area. Under US copyright law (and other countries are generally pretty similar), clothing is considered a "useful article" and despite the fact that many outfits from anime, manga and games are ludicrously non-useful, it SHOULD still count. Specific fabric patterns can be copyrighted, but actual outfits? They're fair game. Probably.

The fact that fashion can't be copyrighted has had some strange effects. Nearly all major clothing chains are now part of the "fast fashion" movement that essentially clones the look of new outfits right off of runway shows, and rushes them out to stores at discount prices. Fast fashion is terrible for the enviroment, and many famous designers are burning out from having to make new designs so quickly, but it sure has made clothing much cheaper. (I highly recommend the documentary "The True Cost" for more on this. It's on Netflix as of this writing.) But I digress.

There are two big areas of concern here. The first is that cosplay clothing sometimes has copyrighted artwork ON those costumes. Logos can be copyrighted or trademarked. A specific drawing, like the pill on the back of Kaneda's jacket in Akira, might arguably be copyrighted.

The bigger complication, however, is that US courts have consistently held that fictional characters and their depictions are protected by copyright, even though they're just an idea and not really tangible. More aggressive copyright litigants like Disney have gone hard against everyone from costume companies to day care centers trying to protect their characters in this way. A depiction of a copyrighted character in a play (even a masquerade sketch at a convention) would almost certainly get disapproving looks from lawyers. Whether or not they'd win a case against someone for it is an open question.

However, unless you're dressing up and playing the character for money (such as party entertainment or in a play or something), you're probably okay. Selling the costumes would be a money-making operation (and probably a derivative work, as far as copyright is concerned), and would be much riskier. Only a court can say for sure whether that would be a violation or not, and I don't know that any case like that has ever gone to trial. (Disclaimer: I am not a lawyer and this is not legal advice!)

There's also the issue with Trademarks, which are a separate thing, and add to the complex nature of making sure you're not getting yourself into potential trouble. Trademarks and service marks generally describe a brand, and cover names, logo appearances, brand mascots, and all of that... However, trademark infringement is really only a problem when you're trying to sell your own goods or services. It's why, say, CVS can't start offering Naruto flu shots without permission.

Much like fan fiction, I only know of a few creators who have spoken out against cosplay. Most are American artists. In anime and manga, I only know of one creator who doesn't like cosplay of her characters: the famous Ryoko Ikeda, creator of Rose of Versailles. "They could never do my characters justice," she was once quoted as saying. This was some time ago, and the quality of cosplayers has gotten so good in the modern era that, frankly, I think whatever concerns she had have long since been disproved.

Cosplay is one of those things that, like fan fiction, is just not worth shutting down. The damage you would do to your brand would be huge, and having it is a sign of a healthy fandom.

What can't be copyrighted? There are a few things...

  • Recipes - Go ahead and make that ridiculously massive pile of delicious food from Spirited Away... Food and drink are also "useful articles" and can't be copyrighted. That's a good thing for all of us Binging with Babish-wannabes.
  • Names and catch-phrases - A lot of younger fans love parroting lines from their favorite shows, and the cute ways that some characters end Japanese sentences. This is totally okay, both live, and in some recorded or written form. Character names, show titles, episode titles, location names, and other such things are also not technically copyrighted, though you have to be careful not to also copy the character itself or part of the story.
  • Ideas - Your 100% original, do-not-steal story and character ideas about an outcast at a magical school who secretly has really strong powers aren't actually copyrighted until they're actually written out as a real story draft, and even then, the rough idea itself can be cloned. Which is one reason why so many shows and stories seem exactly the same.
  • Facts - Researching facts and reassembling them is one of the most important things we can do, and we all learn how to do it in school. (Of course I would say that... that's what this column is.) As long as you're not copying an article verbatim, you can absorb and regurgitate that knowledge with no fear!
  • Header photo cosplay id: https://www.instagram.com/goldencatcosplay/ https://www.facebook.com/GoldenCatCosplay/

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    Anime News Network founder Justin Sevakis wrote Answerman between July 2013 and August 2019, and had over 20 years of experience in the anime business at the time. These days, he's the owner of the video production company MediaOCD, where he produces many anime Blu-rays. You can follow him on Twitter at @worldofcrap.

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