Get ready, nerds! This summer’s Comic-Con season is almost upon us and your costume is not going to make itself. But before you squeeze into your tights and cape, do you need to worry about copyright infringement? This blog recently discussed the Supreme Court’s grant of certiorari in Star Athletica, LLC v. Varsity Brands, a case in which the Court will consider copyright law’s useful article doctrine as applied to cheerleading costumes. The decision may also have important implications for cosplayers (for those not in the know, a “cosplayer” is someone who dresses up in costume to play a character).

Section 101 of the Copyright Act states the design of a useful article is only considered a copyrightable work to the extent that “such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. The original House Report accompanying the Act specifically called out the shape of a “ladies’ dress” as a design that should be denied copyright protection absent a physically or conceptually separable element deserving of its own protection. In a 1991 policy decision, the Copyright Office stated that fanciful costumes would also be treated as useful articles because they serve the useful function of clothing the body. Given the highly creative nature of most super hero costumes, the Copyright Office’s uninspired interpretation might seem a bit of a stretch, particularly if you’re a fan of Mister Fantastic.

So what elements of super hero costumes are protectable? For starters, two-dimensional designs and fabric patterns may qualify if they meet the minimum level of artistic creativity necessary for protection. This is the key issue in the Star Athletica case. If the cheerleader’s “stripes, chevrons, and zigzags” are protectable, then perhaps Ms. Marvel’s iconic lightning bolt and Spider-Man’s web-patterned suit should be protected too. Some items are also clearly separable from the body-clothing function of the costume. For instance, unauthorized reproductions of Thor’s hammer or Captain America’s shield likely infringe the original designs. There may also be some greater protection for masks because they are seen as having less useful function, though we think Iron Man would disagree.

The next question is whether cosplayers are protected by fair use. There are four factors to consider: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. Fair use determinations often fall in a grey area and this is particularly true for costumes, but the most important factors here are likely the first and fourth. The majority of Comic-Con costumes are made at home for non-commercial cosplay purposes and are thus much more likely to be seen as fair use. Such uses do not significantly affect the market for licensed goods and the movie studios and comic publishers have little to gain in going after their most loyal fans. But professional costume-makers and prop artists who sell expensive replicas without seeking permission or paying license fees may be asking for trouble.

With the huge success of many recent super hero movies and the popular embrace of our inner geekdom, the Star Athletica case should help provide some much needed clarity in this area. We’re hoping for an opinion penned by known comic book fan Justice Elena Kagan.