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Cosplayers at Dragon*Con in 2014

Cosplayers at Dragon*Con in 2014

One of the most commonly discussed legal issues in fandom — and probably the least well understood — is copyright as it applies to things fans make. Specifically, fans love to make replicas of hand props and costumes from their favorite movies, television shows, anime or comic books and wear them to conventions, occasionally making them to sell to others who love the things but lack the skills to make these items themselves. A significant law suit regarding the copyright of costuming has just been affirmed by the United States 6th District Court of Appeals last Wednesday, with potentially serious ramifications for cosplayers. In specific, the pattern of stripes, zigzags, chevrons and colors on uniforms worn by cheerleaders across the country can be copyrighted under federal law. The case is “Varsity Brands Inc et al v. Star Athletica LLC, 6th U.S. Circuit Court of Appeals, No. 14-5237”.

The Gist of What Happened

Two rival makers of cheerleader uniforms were involved in the suit, resulting in a 2-1 decision in favor of Varsity Brands, Inc., one of the largest U.S. makers of cheerleader uniforms, that accused rival Star Athletica LLC of infringing five of its designs. Writing for the majority, Circuit Judge Karen Nelson Moore said Varsity could try to copyright its graphic designs because they were separate from the uniforms’ “utilitarian” aspects, including their ability to cover the body, draw away moisture, and let cheerleaders do jumps, kicks and flips. Varsity Brands claimed that its designs were “copyrightable pictorial, graphic, or sculptural works.” Also at issue was whether Star Athletica violated Tennessee’s unfair competition law. The dust is far from settled on that one.

Circuit Judge David McKeague dissented and urged Congress or the Supreme Court to clarify copyright law with regard to garment design.  “The law in this area is a mess – and it has been for a long time,” he wrote.

Grady Garrison, a lawyer for Varsity, said in a phone interview that the appeals court’s rationale could cover designs on other kinds of clothing. “The key issue was whether two-dimensional art on the surface of cheerleading uniforms could be protected as graphic works of art,” he said. “We’re very happy with the result.”

Copyright or Not?

Are things like Star Trek uniforms and Spider-Man costumes copyrightable? Well – yes and no.

Traditionally, the elements of a costume that can be separated from the utilitarian aspects of clothing, if clearly graphical in nature, can be copyrighted. The spider on Spider-Man’s chest could be, for example (surprisingly, it isn’t, because it’s covered by a completely different legal instrument called a “trademark”). The specific collection of symbols and colors adorning the surface of cheerleading costumes is copyrightable (for now). An interesting point to be made here is that the new ruling really hasn’t changed copyright very much. Identifying graphical elements that might be used on a costume have always been subject to protection via copyright.

Cosplayers in "army men" costumes, camoflaged to look like the carpet of the Marriot Hotel in Atlanta, Georgia, Dragon*Con 2013

Cosplayers in “army men” costumes, camoflaged to look like the carpet of the Marriot Hotel in Atlanta, Georgia, Dragon*Con 2013

In 2013, some cosplayers made camoflage soldier costumes which mimicked the pattern on the floor of the Marriot Hotel in Atlanta, Georgia where Dragon*Con takes place. It was so popular that they were asked to make the fabric so other cosplayers could create their own Marriot carpet camo suits, and that’s when the hammer came down. The design was copyrighted by Courtisan, Inc., and they filed a Cease and Desist order to prevent the sale of their design as a fabric pattern. Note here in this case that it was the pattern that was copyrighted, not the carpet itself. The pattern was distinctly separate from the utilitarian item upon which it appeared, i.e., the Marriot carpet.

The cut of the clothing, though, is not subject to protection via copyright because it is impossible to sufficiently separate that from the utilitarian aspects of the clothing, so making a replica of the tuxedo worn by Sailor Moon’s Tuxedo Mask is probably not going to get you into trouble. Even making them to sell, because the design itself can’t be copyrighted, probably won’t cross any lines. Advertising it using the phrase “Tuxedo Mask” or “Sailor Moon” might, though, because those are trademarks.

Figuring out exactly how artful the design of a utilitarian object must be before it can be copyrighted is wildly tricky stuff. There were already  nine different tests used by the court to determine if an element of clothing can be copyrighted, and the 6th circuit just added a very fuzzy and ill defined tenth. Basically that tenth test comes down to two additional questions:

  • Was the copyright on the clothing registered within five years of original release?
  • Do the judges think any special considerations should apply?

The creation of a tenth rule that can be applied to costume copyright may simply increase the burden placed on the entity filing the law suit, making it more difficult rather than less difficult to pursue perceived copyright infringement by costumers. On the other hand, the second part of this rule may make it easier, by making it possible to ask the judge to invent some new interpretation on the spot. Copyright law was already a huge mess, and this made it incrementally worse.

This new law suit over sportswear designs focuses not on copyrighted costumes, but the specific designs on the costumes, and as such, draws heavily on copyright law precedent. These sorts of designs were already subject to protection by copyright.

What It Means To Cosplayers

Is cosplaying going to be outlawed? Probably not. Setting aside the entire question of protection under Fair Use, which pretty solidly protects cosplayers anyway, this new development with Varsity Brands is probably not far reaching enough to redefine any of the legalities of what cosplayers do. Hardly any copyrights are filed on costume designs, mostly because up to now it’s been nearly impossible to do anyway. Even if costumes were routinely copyrighted, in practical terms the major copyright holders would have to sue everybody. This would not only totally alienate their respective fan bases and do untold, irreversible damage to their franchises. It would be a boondoggle of unprecedented magnitude, yielding no benefit to the companies owning the copyrights.

While damages sought by copyright holders can be enormous, the bringers of such suits must spend thousands of dollars per suit to file them in the first place, and must show that they have been damaged substantially enough to warrant such a suit in order to file it. Even if an individual cosplayer makes a replica of a suit that has somehow passed all the tests and is legally copyrighted, filing such a suit against the cosplayer for a one-off creation would be frankly just a huge waste of time and money for the copyright holder. Take note of the parties involved in this cheerleader outfit law suit: both are major manufactures, so we’re talking about not one item, but tens of thousands of items.

Karen Schnaubelt, wearing her own creation, "Dawn" of a pair of costumes entitled "Dawn and Dusk", Costume Con 29, 2011

Karen Schnaubelt, wearing a costume designed by Sally C. Fink, and constructed by Karen Schnaubelt. This is “Dawn”, from of a pair of costumes entitled “Dawn and Dusk”, Costume Con 29, 2011. Photo credit: Richard Man Photography

Karen Schnaubelt is a costumer and designer (both fan and pro), well known for a dazzling accomplishments and 42 years as a competitive costumer, with major awards spanning 5 decades. She was co-creator and one of the original founders of Castle Blood, a professional haunted house in Pennsylvania.

She is also arguably one of the first true cosplayers, and was one of the first anime-based cosplayers in the U.S. The word “cosplay” was created in 1984 by Japanese reporter Nobuyuki Takahashi, who was sent to report on the goings-on of the ’84 WorldCon, being held that year in Los Angeles, CA.  He saw Karen and her friends running around there in costume.

When we asked Karen what she thought, she had this to say:

What they’re discussing is whether the design elements that make the garment unique (trim, or seamlines, or cutouts, or whatever) are “separable” from the garment itself,  or whether something on the garment has “artistic” merit above the garment itself.  Basically, it’s two cheerleading uniform companies duking it out in court to see if color blocking and placement of stripes and chevrons is copyrightable.

In the time that clothing has existed, I don’t think there is really much unique that is left in the utilitarian category.  I also see it being very onerous for companies trying to protect 2D designs if they have to produce 3D versions and copyright them separately … if that is even possible.

Due to the often transitory nature of fashion (and even anime), it may not be worth the expense and time to do the copyrights on every individual design. Most copyrights take years to crank through. In this era of “fast fashion” and single-season series / anime / movies, the fad would be over before the copyright [could be] granted.

To summarize, if you take away one thing from this article, that one thing should be:

“Don’t Panic.”

The dynamics of the copyright of character costumes are unlikely to change in any real way from last Wednesday’s ruling, because it still largely conforms to existing copyright law regarding clothing. The United States Supreme Court will not likely to weigh in on the matter, since they only agree to hear about 100 to 150 of the more than 7,000 cases they are asked to review every year.

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Gene Turnbow
Gene Turnbow

President of Krypton Media Group, Inc., radio personality and station manager of SCIFI.radio. Part writer, part animator, part musician, part illustrator, part programmer, part entrepreneur – all geek.

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