Cosplay and Characters: A Complicated Copyright Issue
In the mid-’90s, I was roaming a Baltimore anime convention: it was the most extensive collection of freaks and geeks one can imagine at a time long before the MCU when getting busted with a comic was still grounds for being shoved into a locker (I was just lucky they missed my D&D dice: a small plastic polyhedron could have instantly been fit into any one of several orifices… roll for which and please don’t crit).
Were norms about how much clothing is obligatory to wear in public flaunted? Absolutely! Much like Ton-tons, do convention centers smell even worse on the inside? Like you wouldn’t believe (evidently, a Goku costume empowers you to fart whenever/wherever)! Was I still completely wow’ed by a dude that arguably violated copyright law and came dressed as Nickolas Wolfwood, complete with a giant, gun-loaded cross? Hell yeah!
As cosplay has emerged as a significant industry on the convention circuit, it touches on some very complicated intellectual property and marketing matters. As a general rule, the rightsholders of the underlying cosplay IP have been pretty cool about it, even at times promoting it: it’s free advertising and encourages the sort of audience engagement that builds communities and makes lifelong consumers and popular events that further the brand. That being said, what is the legal breakdown of what may be the most obvious, sexiest, and perhaps well-advertised copyright infringement ever?
While I will now be analyzing specific issues of law, please keep in mind that #1: I’m not giving “legal advice” to anyone, reading this article is not going to prep you to fight against a multi-billion dollar conglomerate for intellectual property rights, and #2: I’m not your lawyer, for that, you’d probably be sitting down with me for a well-compensated consultation, and I may not be competent to practice in a state that I am not licensed in depending on the issues at play (which can come into play surprisingly fast, i.e., labor laws in California when contracting for work-for-hire).
Now that I have that little matter out of the way, let’s have some fun getting confused over a very “shades-of-grey” aspect of some of the most profitable, interconnected pieces of intellectual property that have ever existed.
The right to create derivative works is one of the many rights that fall under the general umbrella of copyrights, and there are also trademarks to be aware of. Trademarks are essentially an image, word, or words legally registered or established by use as representing a company or product (and are deserving of their own post, however, this is not it).
Copyright Definition
Copyright is a type of intellectual property protection that safeguards original works of authorship as soon as an author fixes the work in a tangible form of expression. Basically, suppose you have an idea and commit that idea to any tangible form, i.e., by writing it out, sketching it, recording it, etc. In that case, you are granted a copyright automatically (though you would need to register it with the copyright office before you can take certain legal actions on it, i.e., sue for copyright infringement). A copyright protects your work from certain imitations. However, there are fair use limitations (i.e., for news and education), and works will eventually enter the public domain and no longer be protected.
Copyright is a bundle of rights, which includes the exclusive right to:
Reproduce your work
Distribute your work
Make derivatives of your work
Perform your work
Display your work
Now that we have a fundamental definition let’s look at how this breaks down in a more practical way for cosplay, which typically embraces at least some elements of what could be argued to be copyright infringement.
For this article, we will keep it to the characters themselves. However, I will be continuing this article with a series of additional articles on other legal issues which cosplay touches upon.
Are Characters a “Work?”
The first of several legal grey areas that cosplay exists in is the definition of “work.” This means a complete work, so a character could be part of a protected work like a book or television show. This individual character within the work, however, may not necessarily be protected in and of itself.
This Captain America Storm Trooper is advertising some major Disney intellectual properties (and seemingly to a quality that would not harm either brand to be associated with: good for you dude)
While many of the separate pieces of a complete work are very distinguishable, it does make sense that “work” would be as complete as possible: after all, there are many long-established tropes and recycled concepts that are baked into any story, and many of these distinct pieces that compose the whole are going to be unoriginal, even if the story as a whole is revolutionary, groundbreaking and unique (i.e., look at how many Kurasawa themes are in the Star Wars franchise: Jedi are essentially wandering samurai and monks with laser katanas in a Japanese Western, and Lucas has talked about his inspiration from the Kurasawa films).
Characters, the likes of which are imitated by cosplayers, are a separate, individual piece of a larger whole that US law has defined as a “work.” Examples of these culturally-important tropes include the hero’s journey story, the fundamental boy-meets-girl story, and that guy with weird hair in every anime that gets powerful and starts glowing when he’s really pissed off and doing his vein-popping scream (the titular character in Bleach, Akira, and half of Dragon Ball Z…). Tropes are a bit of a necessity in certain aspects of storytelling. We have imbued these characters and plot points with a sort of societally-agreed-upon value that has become a cultural go-to in storytelling to conserve space for the more unique elements, perhaps marginalizing one role with a sort of 2-dimensional “inappropriate Fight Club guy at the office” character that is already so evocative you can focus on a far more interesting, nuanced part of the plot.
Not every character is a trope, however, and some have been decided to be unique enough to deserve their own copyright protection. For a recent example of this tension, let’s look to Inside-Out, a concept that was alleged to have been first pitched to Disney by a child development expert as The Moodsters in a series of pitches from 2005 to 2009. The Moodsters were a set of color-coded characters representing happiness, sadness, anger, love, and fear. Pixar put out Inside Out in 2010, featuring color-coded characters that represent joy, sadness, anger, fear, and disgust: on the surface, this seems quite similar. Around the same time, there was another case with a somewhat similar question over whether the Batmobile was copyright protected (with a post analyzing the case by yours truly).
The Moodster/Inside Out case went to court, which found that “Developing a character as an anthropomorphized version of a specific emotion is not sufficient, in itself, to establish a copyrightable character… Daniels cannot copyright the idea of colors of emotions, nor can she copyright the idea of using colors to represent emotions where these ideas are embodied in a character without sufficient delineation and distinctiveness.” In finding this, the court relied on a test from the aforementioned Batmobile case in DC Comics v. Towle. There, the court found that the manufacturer of Batmobile replica cars infringed on the copyrighted Batmobile as it was distinctive enough to warrant copyright protection:
“Not every comic book, television, or motion picture character is entitled to copyright protection. We have held that copyright protection is available only ‘for characters that are especially distinctive.’ Halicki, 547 F.3d at 1224. To meet this standard, a character must be ‘sufficiently delineated’ and display ‘consistent, widely identifiable traits.’…
…the district court held that the Batmobile was a character entitled to copyright protection. In reaching this conclusion, the district court made several findings. Among other things, it found that the Batmobile ‘is known by one consistent name that identifies it as Batman’s personal vehicle,’ and, although some of its physical traits have changed over time, several have remained consistent, including its ‘high-tech gadgets and weaponry,’ ‘bat-life motifs,’ and its jet black color. Additionally, the district court found that the Batmobile is always ‘depicted as being swift, cunning, strong and elusive,’ and is even portrayed as a ‘superhero’ and ‘Batman’s sidekick, if not an extension of Batman’s own persona.’”
In agreeing with the district court’s blogworthy reasoning and ruling in favor of DC Comics, the court in DC Comics v. Towle found
“Towle argues that his replicas of the Batmobile as it appeared in the 1966 and 1989 productions do not infringe on DC’s underlying work because those versions of the Batmobile look substantially different from any particular depiction of the Batmobile in the comic books. We reject this argument. As a copyrightable character, the Batmobile need not have a consistent appearance in every context, so long as the character has distinctive character traits and attributes. See, e.g., Warner Bros. Entm’t, Inc., 644 F.3d at 599 n.8…
As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential.’ Batman: The Penguin Goes Straight, (Greenway Productions television broadcast March 23, 1966). Here, we conclude that the Batmobile character is the property of DC, and Towle 28 DC COMICS V. TOWLE infringed upon DC’s property rights when he produced unauthorized derivative works of the Batmobile as it appeared in the 1966 television show and the 1989 motion picture. Accordingly, we affirm the district court.”
AFFIRMED.”
Na-na-na-na-na-na-na-na na-na-na-na-na-na-na-na lawsuit!
The Legal Takeaway
The quotes in these cases illustrate that 1) even the U.S. court system relies on the moral compass imparted to our society by Batman, and 2) while there are predictable factors weighed, there are few bright-line rules: essentially the more distinctive and central a part of a work is (i.e., the more likely that you are to recognize someone in costume as a particular character, or a car as the Batmobile and associated with copywritten Batman media), the more deserving it is of copyright protection. This is because, while the courts want to allow artists to profit from their unique works, they don’t want to offer copyright protection to something so broad that it would prevent critical cultural concepts that should be available to creators from being used. As a throwback, the trope of “the heroes journey” could not be copyrighted partially because we want that trope to be available to whomever, and don’t want creators to have to pay licensing fees every time a Luke Skywalker or Bilbo Baggins is reluctantly answering the call to adventure.
For most cosplayers, however, the grey area of the law and the fact that your life savings would not be worth a single unkind mention by Kevin Smith is probably your best protection: if they melted most artists down for everything they were worth, it likely wouldn’t amount to enough to even make a solid dent in their legal fees. Plus, with professional models that have become Instagram influencers, the last thing a rightsholder like Disney would want is someone posting a shot in their sexiest cosplay with a link to a GoFundMe to fight back against one of the wealthiest companies on the planet cracking down on a broke, independent artist doing something a million other fans are doing that doesn’t removes value from the franchise. In general, remember, all (or nearly all) of the guys making the decisions are doing so with a fiduciary obligation and so are performing a rational cost-benefit analysis on whether they’re going to sue.
Now, this is NOT to say that you’re fine legally. I’d be a very poor attorney if I said to break the law, or even enter a grey area of the law, unprepped: if you piss these guys off by, say, attracting investors and putting out a line of cosplay costumes that could compete with rightsholders’ merchandise, or perhaps creating an overly-sexy costume associated with a Youth-Appropriate property that scares parents away from the brand, then you may start getting on the radar and struck down like those Batmobile guys in DC v. Towle.
Considering the circumstances, it’s easy to see where DC may not have liked the liability of possibly having a crazy driver (let’s be honest, what sort of guy is actually shelling out 90K for a Batmobile…), bend their intellectual property and brand around telephone pole after mowing over a kid trick-or-treating as Robin: all of a sudden there are parodies and Batman is in an SNL skit next to John Constantine and Billy Joel in some sort of celebrity rehab, doing irreparable damage to an intellectual property worth billions.
That all being said, hopefully I run into you in costume on the convention floor (fingers crossed we’ll continue to not get in trouble).
Keep in mind that cosplay stands at the intersection of other topics like trademark law and fashion copyright law. I’ll be putting out some more posts on the topic, though Publicknowledge.org has a pretty good eagle’s eye view of the intersection of this and several other cosplay topics in the meantime.