Cosplay is a performance art in which participants wear, and often create, costumes representing characters from comic books, cartoons, games, television shows, movies or other media. The word “cosplay” is a contraction of the words “costume play.” A clarification of copyright law could potentially create obstacles to cosplay, depending on an upcoming decision of the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc. et al.

Background

Original two-dimensional graphic or pictorial designs are protectable by copyright, whether they appear on an artist’s canvas, a canvas bag, or a canvas shirt. However, when the shape or design of an article is dictated by or responsive to the utilitarian function of the article, the shape or design cannot be protected by copyright. Various courts around the country have adopted different tests to determine whether a design on a useful article, such as a pattern on an article of clothing, is a protectable design separable from the useful article, or whether the design is inseparable from the useful article and therefore unprotectable.

Varsity Brands, Inc. and several related companies (collectively, Varsity) have registered copyrights for multiple graphic designs that appear on cheerleading uniforms and warm-up outfits that they sell. Star Athletica, L.L.C. (Star) also sells cheerleading apparel displaying designs that, according to Varsity, are substantially similar to Varsity’s copyright-protected designs. Star asserted in its defense that designs at issue were for utilitarian “useful articles” which are not protectable by copyright. Star further asserted that the copied elements, i.e., the pattern of stripes and chevrons, were not physically or conceptually separable from the uniforms.

The district court initially hearing the case decided in favor of Star, concluding that Varsity’s designs were not separable from the uniform because the “colors, stripes, chevrons, and similar designs typically associated with sports in general, and cheerleading in particular” make the garment they appear on “recognizable as a cheerleading uniform.” On appeal, the Sixth Circuit vacated the judgment of the district court, determining that the arrangement of stripes, chevrons, color blocks and zigzags are wholly unnecessary to the performance of the garment’s ability to cover the body, permit free movement and wick moisture. The graphic features could be identified separately from, and could exist independently of, the utilitarian aspects of the cheerleading uniforms, and were thus protectable by copyright.

The Supreme Court granted certiorari to review the following question: “what is the appropriate test to determine when a feature of the design of a useful article is protectable under §101 of the Copyright Act?” The Court heard oral arguments in this case on Oct. 31, 2016. The Court is expected to issue a ruling in 2017 clarifying the treatment of designs on clothing under the Copyright Act.

How Does This Apply to Cosplay?

Copyright law protects creative expression and original works of authorship. Luke Skywalker wears simple outfits in the original trilogy of Star Wars® movies, but the character is well developed with a detailed backstory, imbuing Luke Skywalker with a great deal of expression. As such, Luke Skywalker and the appearance of Luke Skywalker would be readily protectable by copyright law. On the other hand, a nameless member of the Imperial Navy is a stock character mandated by the genre and has little creative expression or protectable content, other than possibly his or her appearance as a member of the Imperial Navy.

A ruling favoring Varsity Brands could significantly increase the legal risk of participation in certain types cosplay. The court’s ruling in this case would be particularly relevant to cosplayers using military-type outfits, or other outfits with patterns of colors, stripes, chevrons and the like, to represent members of an organization and not specific individuals (i.e., a generic Rebel Alliance pilot, not Wedge Antilles or Biggs Darklighter). In such cases, claims of copyright infringement raised by a copyright owner would be based primarily on use of the owner’s designs on cosplay apparel, not on appropriation of a specific character.

If the Supreme Court finds the design on a cheerleading uniform to be protectable by copyright, other courts could consider Star Fleet uniforms from the Star Trek® television shows, Imperial Navy uniforms from the Star Wars® movies or the Royal Manticorian Navy uniforms from the Honor Harrington book series to be protectable as well. Such a ruling would strengthen the position of copyright owners and validate copyright registrations for designs embodied in apparel. Content creators, such as comic artists, movie studios, clothing designers, and others, may increasingly seek to register copyright in their apparel and enforce those registered copyrights.

This ruling would likely have little effect on cosplayers creating and wearing significantly more ornate outfits, such as princess-style outfits including multiple layers of clothes and multiple non-functional accessories. Such ornate and detailed cosplay outfits incorporate more creative expression than simple uniforms, and are unlikely to be considered potentially “useful articles” equivalent to the cheerleader uniforms under consideration in the Star Athletica case. Such ornate outfits would likely be considered protectable by copyright regardless of the court’s decision.

One common misconception is that non-profit, non-commercial use of another’s copyright-protected content will not subject the user to liability. While copyright owners may be more likely to pursue entities who are profiting off the owners’ content, they are not barred from bringing legal action against individuals participating in cosplay for their own enjoyment. An infringer of a registered copyright may be liable for statutory damages, which are not directly tied to the economic harm caused by the infringement. Statutory damages may reach $30,000 per act of infringement or up to $150,000 per act, if the infringement is considered willful. While the “Fair Use” exception may serve as a defense against claims of copyright infringement in certain circumstances, the exact boundaries of what constitutes “Fair Use” are not clearly defined. As may be expected, disputes can arise when copyright owners take a more narrow view of the Fair Use exception than those seeking to use copyright-protected content.

Cosplayers and individuals with an interest in creating and wearing apparel designed by others should keep an eye out for the Supreme Court’s decision in Star Athletica, L.L.C., expected in 2017. A ruling favoring Varsity Brands would clarify and reinforce the validity of copyrights in artwork incorporated into apparel, and could encourage copyright owners to register and enforce their rights. Alternatively, a ruling favoring Star Athletica could clarify individuals’ freedom to participate in certain forms of cosplay.