There are many many misconceptions about what is copyrighted and what is not in the cosplay world so I'm here to clear some of this up. Mind you, I've spent a long time researching this as well as talking to people who are legally responsible for knowing the copyright laws like the back of their hand and this is what I've come up with.
Mind you, my word is NOT gold and please feel free to correct me if you find viable proof that states otherwise
Myth: All cosplay is copyright infringement!!
Fact: Yes and no.
"Copyright attorneys will tell you that in a very literal sense these costumes are derivative works of the original, requiring those who make them to first obtain a copyright license from the owners. Making your own costume for Halloween should be fair use of a copyright. However, no use is fair use until a judge says it is. That means that you have to get to trial first. The process of getting there is very costly. The Warner Bros cease and desist letter means that the company is taking an aggressive stance with protecting its copyrights- much like the music industry did. Does this mean that you could get slapped with a suit for copyright infringement if you made your own costume and didnt buy one from an approved licensor? It is possible but because it is for an noncommercial use it is likely to be protected under a fair use defense." - Intellectual Property Attorney Kevin Keener (10/31/09)
See, in layman's terms, cosplay is for self entertainment and personal use only. If you're not making a profit off of it, you're not claiming you are a character or that the characters you are pretending to be were invented by you.. you should be clean and clear. CAN you still be taken to court and sued? Well.. you can be taken to court but the chances of a lawsuit actually going through are quite painfully slim.
I should also make a note here that the "Fair Use" clause of a copyright is a case by case thing that entirely depends on the Judge. However, it seems fair to say that MOST judges would throw a suit over a cosplay out the window for lack of damages to sales of official product.
Another case in point, this is a discussion about a "Joker" Halloween costume being sold:
"The Copyright Act protects pictorial, graphic, and sculptural works. However, it does not protect utilitarian garments. Thus something like the Joker's mask, could be considered a sculpture or separate design element that can be protected, but something like a green vest or a tie, which function as items of clothing are defined as "useful articles" and therefore are not copyrightable. " (IP Applied Class Blog 11/1/08)
However, the main thing we should all be made aware of here is how the company or creators feel about personal costume play or cosplay.
Lucasfilms made this comment about cosplay/costume play after a law suit on a many who was trying to profit off of costumes designs for stormtroopers:
"We do not intend to...discourage our fans from expressing their imagination, creativity and passion for Star Wars through the costumes and props they make for their personal use," Roffman said. "Rather, we see the Court's decision as reaffirming that those who seek to illegally profit from Star Wars will be brought to task, wherever they may be." -(StarWars.com July 31, 2008)
Again, the keyword is "profit". For the most part, if no profit is being sought, companies will turn a blind eye or even encourage the fans to go about their cosplay ways. Enthusiasm breeds enthusiasm.
So the end all of it is: as long as the companies are fine by it, it's all good for the rest of us. And that's what is important right?
Hope this clears things up just a little.EDIT:
Because so many people have asked, Im also going to address the matter of cosplay commissions
. However for this matter, I only have the word of someone who worked with copyright infringements a lot but was not a legal expert. Please do NOT quote me on this one as I am not positive on the legality behind it.
I believe costume commissions go along the same lines as tattoo artists.
See, tattoo artists can tattoo copyrighted materials on people because people are paying for their skills, not the material.
When talking to a person who worked with the anime world and copyrights, they made the same assessment of commissioned artwork. You cannot sell prints with out copyright infringement but you can sell commissions because people are paying you for your work, not the material.
In all of this, I feel that commissioned costumes fall under the same category.
But as mentioned above, Im not entire sure on this so please do not quote me. If someone wants to correct me or knows more about it and can source a site, I would LOVE to see that
! Thanks all!
People I'm fond of