Is It Legal To Cosplay?

Cosplay has existed as a hobby for decades now -- with most people having 'cosplayed' in some way or another for costumed events or parties. Now that people have started making money from it, cosplay's legal status has been thrown into question as a practice that leans heavily on using various companies' intellectual property.

Image via Steamkittens

Cosplay can generally be classed as a derivative work. As cosplayers tend to use single characters rather than complete works, and often change the medium of expression -- for example, translating an animation into a physical costume or photographic representation, there is usually enough difference to avoid being classed as an outright copy.

Because cosplay is such a murky combination of fandom and profit, the question turns not so much to whether or not cosplay is legal, but whether you are actually likely to face legal action for doing it. Cosplaying for profit also takes many forms, so I've broken it up into the four main methods that cosplayers will use to do so: promotional appearances, photography and selling prints, selling replicas, and commissioning.

The 501st Legion is a non profit Star Wars costuming group operating with permission from Lucasfilm

Fair Use

To begin with, I should specify that cosplaying as the majority of people do it -- that is, making a costume and dressing up for fun with no profit involved -- will never be a cause for a company taking legal action. Being non-profit means that cosplay has a great case for being defined as 'fair use'. US Copyright law interrogates the matter of fair use based on four main factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Considering cosplayers only use singular characters -- ie a small portion of the copyrighted work -- and often can be considered to provide free marketing rather than having a negative effect on the value of the original work, it has a strong argument for fair use. Of course when money isn't involved, it would be an extremely poor marketing choice for companies to try and sue their fans.

Even monetised cosplay videos (at least the comedic ones) would also be protected under the part of fair use that protects parody works -- which is the same law that lets filmmakers profit from terrible parodies like Vampires Suck.

Fair use will often cover works that use copyrighted material to make a statement about the original. [Image via Dina Goldstein]


Promotional Appearances In Cosplay

Making paid promotional appearances are far less legally questionable than other methods for cosplayers to make a profit from their art. As the cosplayers are being paid for their appearance as a personality, rather than as a specific character, it's generally of little concern what costumes they choose to wear. The only way this could get hairy is if a cosplayer appearing at an event (for example, a store opening) was advertised as the character themselves (ie, come meet Princess Peach this Sunday!) as this would constitute commercial use of a copyrighted character.


Selling Cosplay Prints

Selling prints is a trickier issue. Many cosplayers may have already received a cease and desist after selling cosplay prints on art site Redbubble -- most notably by Warner Bros and Disney. While I've never heard of prints on other sites being taken down for copyright reasons, selling prints is likely to be seen as making a profit off derivative works.

As companies will often sell posters and prints of their own as merchandise, it can also be seen as infringing on their ability to profit from their copyright. Regardless of whether you think you have a chance at arguing that your print is covered under fair use as a transformative work, a single cosplayer would never have a chance at fighting Disney or Warner Bros in court -- if you receive a Cease and Desist, it's best to listen.

That being said, cosplayers could still continue to make a profit off prints in the clear from any legal action -- if they only sold prints of original concepts and continued to simply distribute photosets of copyrighted material without attempting to monetise it.


Selling Cosplay Props

Selling pre-made cosplay props and costumes is also a contentious issue, as it has the potential to infringe on licensed merchandise that the copyright holder may be selling. At this point it wouldn't even be counted as a derivative work, but a straight up copy. Even if the company doesn't sell licensed products similar to what you are producing, you could still find yourself with a cease and desist if you have an online storefront that regularly sells such items.

While cosplay cases are few and far between (or potentially even non-existent), a number of takedown notices have been sent to various sites offering 3D printed objects based on popular geek properties like Game of Thrones and Final Fantasy.

On the other hand, a number of high-profile propmakers in the cosplay community continue to make a living from creating replica props from copyrighted works, with their clients even including the companies whose designs they are borrowing. Volpin Props is one of the most well known of these, and his only Cease and Desist to date has come from the designers of a certain iconic hotel carpet:

Offering Cosplay Commissions

The matter of commissioning is quite similar to the above, though if you are publicly only offering a service (ie, sewing) rather than a product (ie, a copyrighted costume design) then you have much less chance of being picked up on copyright infringement. With many cosplays moving more and more to original designs and transformative versions, this is even less of a concern. If you are a commissioner, however, it would pay to be wary of reproducing costumes that are already available as officially licensed merchandise.

When it comes down to it, cosplay fits into the weird grey area that surrounds fandom, where it may not be entirely legal but it is often tolerated and even encouraged by creators. Even when fans are profiting from their work, they very seldom are making enough for a company to get their lawyers involved seriously. Still, if someone sends you a Cease and Desist -- it'll always be smarter to comply.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.

WATCH MORE: Gaming News


Comments

    There's no headline in this article? Or is that just something on my end

    Uhh, I think your headline should be "Is it", not "It it"...

    While an interesting article this is going to be interesting to find out if Australia has the same sort of fair use laws? Is it possible to get an Australian perspective?

      I don't think Australia does have fair use laws, and it's really vague about international copyright treaties as well. However most of the biggest copyright holders for cosplayable properties are in the US, which is why the DMCA seemed most relevant. It's hard to say when nothing has actually been prosecuted in Australia -- there's no legal precedents -- but a couple of Australian cosplayers have received DMCA style takedown notices, which is why I started there.

        Thanks for the article :) It was a genuinely fascinating read :) As we get more and more into cosplay on a casual level, my son and I, it's becoming interesting finding out the problems inherent in it and the issues that could potentially arise in the future O_O

          I honestly can't imagine singular cosplayers facing lawsuits (at least not in the near future!). I think it would more likely happen to the big factories that churn out cheap replica costumes and sell them on eBay.

            Moreso issues like the cosplayers who end up seeing success in the field, advertising themselves on either websites or facebook (leading into copyright issues not doubt through use of copyrighted imagery).

        Australia does have the equivalent of fair use exceptions (with some differences to the US law). The most likely area of law you would run into would be passing off or misleading and deceptive conduct. If you as a cosplayer are leading people to believe that you are associated with or endorsed by the copyright holder, you are acting unlawfully. Secondly, if you are selling products or services that misleads people into thinking that the products or services are offered by the copyright holder, that's illegal too. Pure breach of copyright is not going to be a huge issue for most cosplayers, since that involves reproduction of an artistic work. Dressing up or even manufacturing on commission is likely going to pass muster unless the copyright holder or licensee manufactures similar cosplay gear.

        Bottom line, most cosplayers would not be making enough money to make it worth having a go at them. However, they should be careful when using cosplay outside of conventions. You mentioned sponsored appearances. This would start being a problem if the copyright holder objected to the sponsor or the event, e.g. Link appearing at Sexpo to spruik some fantasy dildo or something.

          It'd be interesting to see if companies would go after a cosplayer for a costumed appearance. I tried to look for precedents for that one but again there's nothing really similar in the real world. The closest I could think of would be a celebrity or musician wearing a costume based off a copyrighted work in a performance or public appearance (like Lady Gaga's Kermit dress?)

            I'm thinking about The Pokemon Company and its suit against the cafe owner in the US who used Pikachu on a poster advertising a party. I reckon if you had a cosplayer dressed as Pikachu handing out flyers for an event, you'd more than likely have trouble on your hands if The Pokemon Company found out :-)

              But then you have stuff like this: https://www.facebook.com/DaveYangPhotography/photos/a.415412168474675.120253.397802910235601/1247830378566179/
              Would The Pokemon Company still have a copyright claim on those, for example?

                You could argue that the photo is of the cosplayer, not of the character. It's a legal fight I'd love to see (but obviously bad for the cosplayers involved).

              http://www.kotaku.com.au/2010/06/heres-pikachus-favourite-ice-cream-on-the-citadel/

              Wonder if they've caught this guy yet :P

      The Australian perspective is basically this:

      We don't have a Fair Use clause in Australia and therefore by strict interpretation of the law, every cosplayer is infringing Copyright. Thus, cosplaying is actually illegal in Australia.

      Having said that, noone is ever going to be arrested for cosplaying unless they're actively using the characters they dress as to generate income. Nevertheless, this is a perfect example of why we should already have a Fair Use clause in our Copyright law and why it is absolutely asinine that the government still refuses to implement it. It was the ONE thing that the ALRC board said was an absolute must in their report, and yet so far all we've had on the subject is Mr. Metadata Brandis saying "I remain to be convinced that we need Fair Use".

      Last I heard, they are planning to implement a watered down version of Fair Use that is exclusive to educational facilities and libraries, but not for the general public - thus making the change mostly pointless.

        Yeah I remember Fair Use policy coming under scrutiny in the late 90s/early 2000's when Metallica kicked up a stink and Napster was doing the rounds. America had fair use, with people creating backup cd's/downloading mp3's of already owned CD's for example but Australia had no such provision. Another example of why it would be a great idea (if people still actually buy cd's lol)

        IIRC the TPP is set to shake up copyright law completely anyway, so everything we know after that will be completely defunct.

        But basically bottom line regardless of copyright is that cosplay is a form of 'tolerated infringement' for the most part.

          Isn't the TPP going to give the power to any big corporation to chase anyone for anything, including a foreign government? I'm looking forward to News Corp suing Australia because it opened up competition to Foxtel

          Last edited 16/02/16 2:06 pm

            It's an Investor-state Dispute Resolution system, yeah. Same as what happened with Australia and the Tobacco companies (which is still ongoing I think, and Tobacco is explicitly not allowed to challenge stuff under the TPP).

            Basically it says that if I invest into your country on good faith, and then you change the laws to take my stuff (tobacco cos were arguing that their brands are stuff) I can sue your country.

        You'd get good mileage out of arguing the parody/satire exception and also that cosplaying is not technically reproducing an artistic work (unless you are cosplaying a Marvel superhero or some other film character).

        There are Fair Dealing provisions in the Act, which are not the same as Fair Use, and in any case wouldn't affect cosplay as far as I can imagine.

      We don't have the same laws, but reviews are happening.
      A bit of an overview is here:
      https://www.alrc.gov.au/publications/4-case-fair-use-australia/arguments-favour-fair-use-australia

    I'm feeling really sketchy about this article. Please make sure you don't provide something that looks like legal advice here.

      As long as none of us admit to being lawyers, we should be alright to give our uninformed opinions, right? ;-)

        I'm just worried that people may spread (potential) misinformation about copyright. I think Serrels posted an article about the legality of King wanting to copyright the word 'Saga'. However, I beleive that Serrels did the right thing by actually interviewing a practicing lawyer.

    Good to see you've tackled an issue brought up by a few people (myself included) in your last cosplay article Hayley. Do you know what people like Wayside Creations do for something like Nuka Break. Obviously it's a Fallout fan series and lifts straight from the games. Bethesda are (despite what some people think) quite lenient with allowing people to do their thing as long as they're not making money off it I think or it's not treading on Bethesda's toes such as fake websites, but what happens to stuff like advertising money off Youtube for such videos? People don't go and make such a video because they're looking to make money off it, but what happens if they happen to make some incidentally on the side?

    And on another note, where does machinima cross the line? Is most machinima actually illegal but publishers let it slide as long as it's not attacking the source material? Did Rooster Teeth come to an agreement with Microsoft before putting RvB on dvd?

      You have to wonder what kind of deals go on behind the scenes! This might be relevant: https://en.wikipedia.org/wiki/Let%27s_Play_(video_gaming)#Legal_issues

      With Let's Plays it's especially interesting seeing as different companies have completely different reactions. Like Nintendo 's not a fan but smaller devs pretty much beg to have a well known let's player play their games. Free marketing, right? I'd imagine fan films tread the same kind of line.

        Interesting read, especially when it brings up copyrighted music seeing as record companies are seemingly hellbent on closing down anyone putting up music videos without their permission. I guess with the integration of streaming that the current consoles have though, let's playing is encouraged more than discouraged and publishers and developers can block any scenes they don't want put online such as I've noticed in key scenes of Arkham Knight for example.

    I might've misunderstood, but I think the question should be more of "Is it legal to make money off of cosplay?" as there are those that make a living off of it.

    For general cosplay at conventions, I personally wouldn't think there would be any issues. It's certainly an interesting question though because unless paid, the photographer owns the copyright to the photo, yet the actual character is usually part of a larger copyright ownership.

    Has there been any cases relating to say, Shutterstock selling images that have an Audi in it or the many involving Disneyland and its characters?

      Another grey area is fan art. How close to original artwork do you have to get before it counts as infringement? https://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/

        I didn't even think of fan art! Good point. It's such a contentious issue in both cosplay and fan art, hell even fan made "movies" because with cosplay and art, unless bought or commissioned from elsewhere, SO much time has gone into hand-making something, I would like to see that be protected.

        I'm looking at possibly doing photoshoots this year of cosplays I have lined up, maybe even entering the competitions. I would personally feel devastated if I did a photoshoot of my Ronan the Accuser cosplay and was contacted with a copyright infringement. Food for thought though, it makes a good discussion point.

          I guess you just need to be careful how you use the photos. Make it clear that you are doing cosplay. If the photos aren't being sold or licensed and aren't being confused with 'official' works then you should have nothing to worry about, going on industry practice. Of course, you could be the unlucky test case!

            When it comes to art I think the majority of companies are lenient. How many tshirt websites are there putting people's designs of pop culture on them and making money off them? I've got countless tshirts that would be in breach of copyright such as Mario, Star Wars, GoT or Final Fantasy. And all of these can be made into prints as well

              Like weeds, you strike them down and they grow back a hundredfold!

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