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NEWS: Japanese Government Considers Codifying Copyright Rules on Cosplay Income

My personal opinion? I agree with you @Villain-chan. There's not a lot of money for rights holders to make off of cosplay performers, and fan-activities like cosplay, fan-art, fan-fiction, etc. contribute tremendously to the popularity of various franchises, and even the whole medium (anime and manga) itself. From a practical point of view, I think any move by the industry to limit or "tax" cosplay is tremendously stupid.... which isn't to say that it's not legally justifiable for them to do so.

Tempest wrote:

Id like to ask you a q, cosplay generates awareness for a series, that in return generates money for the people who own the rights to the series.

This is a very complex issue with so many different aspects that it's impossible to come to an objective determination. Ultimately, even the most educated opinion on the matter will still come down to what that particular person finds more important.

This is something that would be better covered in a well thought out, planned, and edited article, but I don't have time for that, so here it is all from the top of my head. I apologize that it will likely feel incomplete or disjointed.

If we want to break it down and look at the different aspects someone might take into consideration, I think the first place to break it down would be moral rights vs. copyright. We don't talk about author's rights (or moral rights) in the west very often, but they are a big part of copyright in other parts of the world, particularly countries with civil law (as opposed to common law); Japan's system is one of civil law.

You can read more about author's rights and moral rights on Wikipedia <a href="https://en.wikipedia.org/wiki/Authors%27_rights">here</a>. But the key take-away about moral rights is summed up in this paragraph:

Quote:

The protection of the moral rights of an author is based on the view that a creative work is in some way an expression of the author's personality: the moral rights are therefore personal to the author, and cannot be transferred to another person except by testament when the author dies. The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honor or reputation. In many countries, the moral rights of an author are perpetual.

In other words, the creator of a work has the right to object to derivatives of their work for moral reasons. This is what Ikeda is doing when she says she doesn't like it when people cosplay as her characters.

Another things to look at would be the harm caused to the brand by bad cosplay. Some financial rights holders might be concerned that bad cosplay might hurt the image of a show (personally it's a long shot, but the right to control the brand perception is an important consideration in most trademark / copyright discussions, so I brought it up here).

The right to control and make a profit off of creation of derivatives of the original work, exploitation of the original work and even exploitation derivatives of the original work. The idea here is that if your work is based on someone else's work, the original creator should share in the benefits of your work. They should also have the right to stop you from creating derivatives if you can't agree to terms that satisfy them, or if they do not approve of your intent.

Cosplay costumes are derivative works. Cosplaying is effectively a performance using a derivative product (ie: the costume). You could easily argue that cosplay is a form of theater, where the cosplayers are performing as characters from the original work. It seems reasonable to say that the rights holders deserve compensation from commercial performances, whether they be Broadway adaptations, or cosplay adaptations.

For some people, these aren't about weighing the pros versus the cons, but they are about the principles. The creators and rights holders often feel that they have certain rights, and regardless of the financial impact, they feel that it is an affront if those rights are impinged upon.

On the other hand, I'd also like to touch briefly upon fair use. Japan doesn't have much fair use at all (they do have some!), and they don't have any legal concept of transformative works as far as I know. Transformative fair use is extremely strong in the US; it allows a creator to take someone else's work and transform it in such a way that they have created an entirely new work. It can certainly be argued that cosplay can be transformative, but most of the time cosplayers are striving to be as faithful to the original as possible, which is more akin to "copying" than "transforming." Changing just the medium isn't particularly transformative. As I said, I don't think Japan has any precedent for transformative fair-use, it's an American concept that's been around for less than 30 years. Would you believe that you have 2 Live Crew to <A href="https://www.law.cornell.edu/supct/html/92-1292.ZO.html">thank for this legal concept</a>?

Discussing fair use isn't legally relevant to the Japanese situation because Japan doesn't have Berne or US style fair use exemptions for stuff like this. But, it's still interesting. If Berne style fair use were to apply to costumes, would cosplay be "fair-use?" Probably not. Cosplay usually isn't criticism, comment, news reporting, teaching, scholarship, or research. Further more, if the costume itself is the copyrighted work (as opposed to the anime/or manga as a whole), then the cosplay is a very significant reproduction, not just an small portion. As noted above, cosplay usually isn't particularly transformative (although in some cases it can be very transformative). Finally we get to the financial questions. Is the cosplay for profit, and does it have a negative impact on the ability of the rights holders to exploit the work. Normally the answer to both these questions is a resounding no. The cosplay at issue right now is only that small fraction of cosplay that is done for commercial purposes.

<b>My personal opinion?</b> I agree with you @Villain-chan. There's not a lot of money for rights holders to make off of cosplay performers, and fan-activities like cosplay, fan-art, fan-fiction, etc. contribute tremendously to the popularity of various franchises, and even the whole medium (anime and manga) itself. From a practical point of view, I think any move by the industry to limit or "tax" cosplay is tremendously stupid.... which isn't to say that it's not legally justifiable for them to do so.

While I do think that copyright should apply to costumes (within reason), but as a proponent of copyright reform (copyleft), I think that there should be significant limits on that copyright and plenty of fair-use, including "transformative" fair use. I believe that not-for-profit derivative performances should be fair use (they aren't).

That said, at least Japanese law makes a distinction between for-profit and not-for-profit cosplay. This is similar to but better than the way US courts look at fair-use, as certain infringements become "less fair" is they are done for profit. In Japan's case, it seems they've outright said that non-commercial cosplay is not an infringement of copyright law.

This was VERY informative, thank you so much for giving ur take on this. Something u said though that i want to point out. U mentioned how the copyright holder has the right to say they can't cosplay and the reasons for why. While i get the reasoning, it just doesn't add up given fan art also exists and could do the same and unless it's legit damaging the brand and costing them money (As in, proof of this is provided) I don't feel this should even be allowed becus, fan art. I know we're talking about cosplay but as pointed out by many, fan art is very similar and its very hard if not impossible to keep people from making it and more so posting it online for the world to see. If you have more time I'd love to hear ur thoughts on this too but really, thank u for what u wrote

Villain-chan wrote:

This was VERY informative, thank you so much for giving ur take on this. :) Something u said though that i want to point out. U mentioned how the copyright holder has the right to say they can't cosplay and the reasons for why. While i get the reasoning, it just doesn't add up given fan art also exists and could do the same and unless it's legit damaging the brand and costing them money (As in, proof of this is provided) I don't feel this should even be allowed becus, fan art. I know we're talking about cosplay but as pointed out by many, fan art is very similar and its very hard if not impossible to keep people from making it and more so posting it online for the world to see. If you have more time I'd love to hear ur thoughts on this too but really, thank u for what u wrote :)

Given what has been pointed out in the article and previous comments, I'm not sure how @Tempest's point about the reasons a copyright holder may object to cosplay fail to add up. Legally speaking, Japanese copyright holders can object to pretty much whatever fan work(s) they want. To my understanding, they don't even have to apply their legal rights in a fair or equitable manner as they spoiler[hypothetically] have to in the US. So just because someone allows doujinshi to be published doesn't mean they'd allow cosplay and vice-versa.

Perhaps the IP holder feels that cosplay is more likely to have a negative impact on their brand image than doujins. For a potential idea here, since a lot of cosplay is not 18+, pictures and videos of people cosplaying a character may reach a much wider audience than 18+ doujins of the same work, so the creator may be fine with the doujins, because of a reasoning like "hardly anyone will see the doujins anyways, and those that do probably don't care about the brand image in the first place."

This was VERY informative, thank you so much for giving ur take on this. Something u said though that i want to point out. U mentioned how the copyright holder has the right to say they can't cosplay and the reasons for why. While i get the reasoning, it just doesn't add up given fan art also exists and could do the same and unless it's legit damaging the brand and costing them money (As in, proof of this is provided) I don't feel this should even be allowed becus, fan art. I know we're talking about cosplay but as pointed out by many, fan art is very similar and its very hard if not impossible to keep people from making it and more so posting it online for the world to see.

Villain-chan wrote:

This was VERY informative, thank you so much for giving ur take on this. :) Something u said though that i want to point out. U mentioned how the copyright holder has the right to say they can't cosplay and the reasons for why. While i get the reasoning, it just doesn't add up given fan art also exists and could do the same and unless it's legit damaging the brand and costing them money (As in, proof of this is provided) I don't feel this should even be allowed becus, fan art. I know we're talking about cosplay but as pointed out by many, fan art is very similar and its very hard if not impossible to keep people from making it and more so posting it online for the world to see.

Fan-art doesn't get anymore of a pass than Cosplay. In Japan, companies have the legal option of shutting down any for-profit fan-art or doujinshi that they don't approve of. For the most part, they <i>choose</i> not to enforce those rights.

This adjustment to Japanese law will put a better definition on what they can do with for-profit cosplay, that doesn't mean Japanese companies will choose to enforce their rights across the board. They will have roughly the same legal options in front of them as they do for fanart.

Seems fair.

-t