Is It Legal To Cosplay Characters You Don't Own?

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.


Comments

    just keep your receipt from the cheap-ass cosplay suit you bought from a halloween store before deciding it was crap and made your own.....:P

    I'm interested in why you placed Americas fair use law information? I could be very wrong (I'm no lawyer), but it was my understanding that Australia has no fair use laws? I always thought the law was unless you have actual permission from the content creator you can not make copies, parodies or even derivatives of work.

    Then again I'd imagine most things people cosplay from would be from media from either Japan or America so i guess in that case the law would be more important from the respective countries and not ours?

      Because most of these articles are posted as complete, from American branches of this suite of sites, with no thought to localisation.

        This is actually an Australian story, but the most relevant and litigious companies (say Disney and Warner) tend to be in the US. But as nothing similar seems to have been prosecuted in Australia, it's really hard to say what a local ruling would end up being. Australians have been hit with DMCA style takedowns over cosplay prints and sales, however, which is why I went with that.

      I always thought the law was unless you have actual permission from the content creator you can not make copies, parodies or even derivatives of work.The Copyright Act 1968 and more specifically the Copyright Amendment Act 2006 has Australia's laws more or less in line with the US, allowing for "fair use" for the purposes of review, study, parody etc.

      Copyright Amendment Act 2006
      https://www.comlaw.gov.au/Details/C2006A00158

        Thanks for your comment, I found it quite interesting to read through, albeit it seems a bit dry :p, but I guess thats to be expected when reading copyright amendment acts lol.

        From my understanding (again not a lawyer) you are definitely correct, it does allow for use within parodies and satire, but it seems that "transformative use" was not added to the fair use as opposed to most other countries such as the US. Which I feel is typically where parodies are placed under.

        I wonder if its because we address parodies and satire directly in the act? But it does seem similar albeit more restrictive then the US laws. (better then I expected, not best lol)

    Most of the American laws referred to in the article seems irrelevant for our jurisdiction. Fair use is not the same as fair dealing, and where fair dealing has been considered, it was determined on a case by case scenario. If you follow the Australian case law examples, it seems very strict and specific about the extent of the work allowed to be considered "fair dealing".

    The author claims that cosplay is a kind of derivative works in the US. In Australia we refer to them as "adaptations".

    Section 31 of the AUSTRALIAN Copyright Act 1968 refers to "adaptations". Adaptations are an exclusive right of the copyright owner. Rights holders have the legal right to block any adaptations of their work. http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s31.html

    So is cosplay legal here? Probably not.

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