Term Paper on "Cosplay and Copyright Law"

Term Paper 7 pages (2178 words) Sources: 4 January 18, 2018

[EXCERPT] . . . .

9

Is Cosplay Legal?

Introduction

Intellectual property is particularly important to creators of characters beloved of fans around the world. The producers typically hold the rights to the characters so that the creation is not distorted or abused in public in such a way that the brands value is diminished. Yet, in the world of Cosplay, fictional characters are celebrated by fans to promote the work of the creators and producers. Fans dress up as their favorite characters at Cosplay conventions and celebrate comic books, movies, art, and so on. However, what started out as a movement for and by fans has now become a means of making a profit: fans, companies, and many others who do not own the intellectual property rights of specific characters or stories are using these characters and stories as a way to make money through Cosplay for themselves. So the question is: Is Cosplay legal?or does it violate the rights of the creators and producers of these stories and characters?

What is Cosplay?

Cosplay is best categorized as derivative work. This means those who engage in Cosplay typically take a single character from a film, book, comic book, game or so on, and bring it to life via costuming. The complete work is only referenced through the character portrayed by the cosplayer and the medium of expression is usually changed (Williams, 2016), which allows the translation to avoid being classed as an outright copy (Williams, 206). At the same time, the combination of fan expressions and for-profit activitiessuch as the taking and selling of photographs with costumed cosplayers representing copyrighted characterscreates legal questions about Cosplay. To what extent can fans or others seeking ways to financially profit from Cosplay legally proceed before they are infringing on the copyrights of creators and producers?

The Ways that Cosplay Benefits from or Uses Others Creative Work

As Williams (2016) points out, there are basically four different ways that Cosplayers can make money from or use others characters and stories: First, there is fair use, which consists of fans creating their own costume for fun; there is no profit-making involved, and the fan is simply celebrating a character or story by costuming. Fair use has served from the beginning as the basis of Cosplays legality, since the essence of Cosplay was always about being fan-based and not-for-profit (Williams, 2016). According to U.S. Copyright Law, fair use is determined by considering the purpose, nature, extent, and effect of the usage of the copyrighted work. Since Cosplay assumes such a minute portion of the overall creative work (commonly only using a characters semblance in a costume), the extent is usually deemed small. The purpose of Cosplayat least initiallywas nonprofit, the nature of Cosplay was fan-based fun and casual, and the effect of Cosplay was not largely felt outside the group participating in it. Over the years, Cosplay has morphed into something much bigger than it was in its origins during the early days. Today, Cosplay exhibitions attract both of casual and professional cosplayers, which makes the argument that fair use applies as a legal defense much weaker (Madonia, 2016). In other words, Cosplay has become a highly profitable industry that mixes amateur cosplayers with professional cosplayers in an environment where the extent of copyrighted use may stretch far beyond the actual physical environment of the Cosplay exhibition, as photographs, films, collectibles and other materials related to the Cosplay experience are sold and distributed around the world. Still, even works that are parodies of beloved characters and films may be protected under fair use lawssuch just because a Cosplay work is monetized does not mean it is violating copyright laws. Parodies are one example of how third-party character usage may be protected by law.

A second way that cosplayers may use copyrighted material during Cosplay is through promotional usebut here the individual appearing as a character is typically billed in the promotion as him or herselfi.e., their own media personality. For example, a model might appear at Cosplay and be promoted as herself, though she is wearing the costume of a popular video game character. Promotional appearances of this nature are generally regarded as legal, since what is being promoted is the personality of the individual rather than the character whose costume the individual is representing.

A third way that cosplayers benefit from copyrighted material is through the sale of cosplay prints, posters, photos and props. Warner Bros. and Disney have both been known to send cease and desist letters to sellers of cosplay art online, as it is frequently viewed by these producers as an infringement of their intellectual rights (Williams, 2016).

Finally, there are cosplay commissions, in which the service of costuming is rendered for pay. This is another area that could potentially be viewed as an infringement of copyrights, though it is harder for copyright holders to assert their rights when a service rather than a product is involved. For example, it is difficult to send a cease and desist letter to commissioner after the service has already been rendered. If ones career, on the other hand, is based on commissioning cosplay art, copyright holders may view this occupation as an infringement and move to shut down unlicensed commissions.

Cosplay and the Law

Intellectual property is copyrighted in America because the potential for theft and unauthorized use of the property is so great, especially in the Information and Digital Age where easy access to material and distribution is available on a scale never before seen. Cosplay represents a fine line between promotion and exploitation. On the one hand, creative artists and producers recognize in Cosplay the kind of public advertisement that helps to build a brand. On the other hand, there is the risk of ones intellectual property being exploited by third parties who seek to profit on their own from a created characters popularity. For example, a cosplayer might sell character replicas at Cosplay or online for a profit, without paying licensing fees to the copyright holder. Similarly, a cosplayer could alter a characters representation or use it a way that is unapproved of by the copyright holder. Bill Watterson, the creator of Calvin & Hobbes, is famously known for shutting down unauthorized use of his characters because of his dislike for how his characters were being repugnantly portrayed. The battle to protect ones intellectual property is therefore very important. As Schreyer (2015) notes, American intellectual property law is designed to incentivize authors to create new literary, artistic, and other works of authorship; and thus add to Americas rich and ever-growing popular culture (p. 52). This incentive can be said to be extended to cosplayers, via fair use, but also to the tendency of cosplayers to adapt characters and alter them into something new and unique.

The law stipulates that a copyright owners monopoly of the character created by him or her is kept in check in numerous ways: by (i) limiting the protection afforded to characters to only those that are fully developed; (ii) allowing others to create and exploit similar, but non-infringing, characters that share common traits and stock or genre characteristics; (iii) permitting third parties to make fair uses of characters; and (iv) ensuring that the copyright in protected characters will eventually expire, injecting such characters into the public domain (Schreyer, 2015, p. 52). If a character is not fully developed, a cosplayer is well within his or her rights to use that character for his or her purposes. A Cosplayer may also develop a character that is similar to a popular character but different in a unique way. For characters that are fully developed, the law is explicit. As a creator has the right by law to benefit from the use of that character, licensing is a standard and common practice when it comes to intellectal property rights. Third parties pay a fee for distributing or selling character likenesses, showing films, selling books, and so on. When it comes to Cosplay, the laws interpretation can be stretched, depending on how the actions of cosplayers themselves are viewed.

Since a lot of what takes place at Cosplay has to do with costuming, it is helpful to understand how fashion design can be copyrighted. Fashion designs can be patented, can have their design patented, can be trademarked, copyrighted, and protected sui generis (Woods & Monroig, 2015). Costumes, such as Halloween costumes, are customarily protected under US fashion design copyright laws. Cosplay essentially consists of costumed individuals representing their favorite animated heroes or movie characters. Therefore, when cosplayers dress up in these costumes, they are doing so without license from the proprietors of the copyrighted characters. If the cosplayers are engaging in fair use of the characters likeness, then no infringement may be said to take place. However, if the cosplayers are using the characters likeness to obtain financial gain, an infringement is likelyespecially if the cosplayer is not adding anything unique to the manifestation (such as satire to a film).

In the end, the legality… READ MORE

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