Cosplay 2: Fashion & Copyright

In this second cosplay article, I’ll be delving a bit more into the law as it pertains to cosplay, specifically within a fashion/design context. This is a PHENOMENALLY confusing aspect of the law, so please keep in mind nothing in here is legal advice; it is simply to give an educational background (and, if we zoom in on any particular situation, we may see additional, tangential areas of law implicated that I’m not necessarily analyzing.)

Once upon a time, when I was a wee lad in law school living in Williamsburg in 2010, I had a roommate that would complain about her job in the fashion industry. Yes, every woman that lived in Williamsburg at that time, in one way or another, could claim to be a fashionista, yet she did not: she would do millions of dollars of sales during fashion week by going from upscale store to upscale store, taking a couple of photos, copying everything she could find a cheap way to replicate, designing the replicas, and then selling in bulk during NYC Fashion Week. A LOT of work in fashion looks like this due to the relatively weak protection offered to clothing designers compared to other artists, which has profound implications on cosplay.

Valkyrie Moon, a character from Sailor Moon, perhaps the most popular series to cosplay

Also once upon a time, clothing designs were not subject to copyright law, so designers could gain no protection for their work and see it replicated and undercut (referred to as “style piracy” in the industry). Fast forward to the Copyright Act of 1976, and designers start catching a break as Congress changed the law in copyright to allow for the copyrighting of aesthetic features of “useful articles” or “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” The Copyright Act also defined that pictorial, graphic, or sculptural features of useful articles were copyrightable only if separable from the utilitarian aspects of the design and capable of existing independently of the article.

What is separable, though? What qualifies as utilitarian, and how independently must it exist of the rest of the article? I.e., would a particularly artful zipper design, something that is undoubtedly at least a part of a useful article, qualify? Questions like this became points of uncertainty in law and industry.

The lower courts had difficulty interpreting the Copyright Act. Soon, several different tests to determine whether or not a particular article of clothing could be considered infringing upon someone’s copyright developed. This led to inconsistencies in what would be considered copyright infringement, presenting prospective plaintiffs with ambiguous rules that a multi-billion dollar fashion industry was very interested in figuring out: where exactly is the line for copyright infringement, and how should the court apply this test? Considering the expenses of going through with a case, the certainty of outcome in a lawsuit was an important consideration that had to be factored into countless fashion industry business plans

The Supreme Court took up the issue in Star Athletica v. Varsity Designs in 2017. This case is currently considered some of the best court-defined guidance on the law of copyright infringement in fashion as it is one of the few occasions when “The Supremes” decided to delve into a situation that was at least akin to the court making a very taboo determination of what is legally defined as art. This hesitance is in part because the law has shown itself to at least occasionally be an exceptionally poor arbiter of what passes the threshold to constitute art or how much artistic value an object or performance has. This has reared its head often in the context of what has enough artistic value to pass the muster of an obscenity law as being protected speech under the 1st Amendment (think more Lenny Bruce being tossed in a paddy wagon with George Carlin than whether or not strip clubs should exist in Times Square if Naked Boys Singing, a Broadway musical with precisely the same amount of nudity, is allowed… but yeah, that counts as part of the debate of what art is too…).

George Carlin, being arrested above for obscenity for performing “Seven Words You Can Never Say On Television,” was in the police van next to Lenny Bruce, fellow standup comedy legend, when Bruce was arrested for obscenity

Considering this legacy and the ever-shifting concept of what qualifies as “art,” it’s easy to see why courts usually side-step judging artistic value. This has deep implications when the courts are tasked with deciding what is artful enough that it should be protected by copyright, i.e., in Star Athletica:

“Congress has provided copyright protection for original works of art, but not for industrial designs. The line between art and industrial design, however, is often difficult to draw. This is particularly true when an industrial design incorporates artistic elements."

When they say “industrial design,” that’s basically the same thing as “useful article”: they’re thinking more along the lines of a zipper, which is a thing that would be more appropriate for patent protection than copyright. If you designed a particular zipper with, say, a painting that the zipper goes through a la a Mad Magazine fold-in cover, could the design of the image stand alone in another medium, or would the zipper be a necessary element of the whole, making it a “useful article?” You can see how this gets complicated fast.

Who won? Who cares, but the reasoning the court offered guides all of the US courts:

“We hold that a feature incor-porated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated”

So let’s break down how this MIGHT work in the real world (though keep in mind, it may differ depending on the judge you may be dragged in front of): can you take the design of the clothing, turn it into a painting (or other media that is completely removed from the “useful articles” of the clothing) and appreciate the work separate from those useful articles? Like, say, pulling the “S” off Superman’s uniform from one of the movies and appreciating the graphic design removed from the clothing? This was similar to the line of reasoning for the plaintiff in Star Athletica and, considering how that “S” is on more merchandise than I can recall, I think there’s a pretty strong argument that you could perceive it as a two- or three-dimensional work of art separate from a useful article. It would (most likely) qualify as a protected pictorial, graphic, or sculptural work (in that it would otherwise qualify for copyright protection).

That being said, do I still look forward to cosplay competitions that will likely feature several Supermen? Absolutely! This seems to be a sort of open copyright infringement that’s pretty safe, often even encouraged, by the rightsholders as it constitutes free advertising and marketing.

Now that’s not to say that you might not get a cease and desist letter if you make an overly-sexualized version of a Youth-Appropriate property or get sued if you were to create a well-funded professional cosplay clothing line without discussing licensing with the rightsholder. All in all, however, while the toleration of copyright infringement doesn’t necessarily grant you any rights that you can count on, it has emerged as an art form that is generally accepted by the communities of individuals and companies that are in a position to sue. Afterall, a drop-dead gorgeous cosplayer putting links in the comments of their best cosplay photos to a GoFundMe drive to pay for their legal fees as an independent artist being sued by a large corporation is a potential PR nightmare.

Trust me, these cases defining art are typically complicated enough to be very unfun for the judges, and are difficult to analyze as hypotheticals.

That’s the basic breakdown on how clothing designs are protected by copyright; check out the previous post on how the characters you are cosplaying may be protected by copyright in and of themselves and a bit more of a breakdown on cosplay and copyright in general.

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The Strange History and Cascading Derivatives of The Ghostbusters Franchise