Copyright and Trademark Issues in Cosplay

We suspect that many people aren’t aware that when they cosplay they are potentially guilty of copyright or trademark infringement. This isn’t something that is usually a problem or an issue, so that, in itself, isn’t normally anything that should concern anyone. However there are occasions where there can be problems and costumers/cosplayers have found themselves in trouble from time to time.

This article only considers the various issues within the UK and even here things aren’t simple or straightforward.

To start with, it is worth clarifying that in the UK, whether you create your own costume of a well known character, or buy elements or the whole of a costume of a well known character, to ‘cosplay’ at a con, you are highly unlikely to have any problems or issues at all to do with a potential breach of the copyright or trademarks associated with that character.

It is worth though looking at law in the UK and where there might be issues.

A recognisable character, whether from film, a book, a comic, a video game or a TV series is ‘protected’ in a number of ways. The ‘look’ of that character is copyrighted, that is it is likely to be a breach of that copyright to, for instance, draw something that is recognisable as a known character and then sell that image. This would primarily be a civil issue, something that the copyright holder would have to pursue you through the civil courts to gain compensation for the copyright breach, though there are specific circumstances under which the breach of a copyright can become a criminal matter for which you can be prosecuted. A ‘main’ character is also likely to be trademarked, which gives much wider protection than copyright.

Copyright only protects the specific expression of an idea, e.g. when a character is drawn, described in a book, photographed or filmed, or appears in a video game, it is the specific appearance of that character in those specific cases that is subject to copyright, so something that is recognisably similar to that character but isn’t the same, won’t necessarily be a breach of copyright. A Trademark though gives much deeper protection, where a particular character is trademarked, it is the idea itself that is protected, rather than just a specific realisation or expression of that idea. This means that for trademarked characters, anything that is recognisably similar to that character will be a breach of that trademark whether it is the same as the original depiction or not.

Taking as an example, R2D2, if R2D2 as a character was only protected by copyright, any image, whether original artwork or not, that matches the appearance of R2D2 from the films, or comics, photographs etc. will breach that copyright. However, creating a dress that is coloured/patterned such that people would recognise it as ‘R2D2’ does not breach the copyright of the design of R2D2 as it isn’t depicting the original design as realised in whatever medium. However, if the character of ‘R2D2’ is trademarked (which it is) then that dress, though it doesn’t breach copyright, WILL almost certainly be a breach of the trademark (a trademark is registered for specific purposes, if one of the purposes is ‘clothing’ then it will be a breach of that trademark)

Now looking at where there might be potential issues in cosplaying a character.

As stated, anyone simply turning up at a con in cosplay is most unlikely to ever experience any issues or problems, though most cosplay does breach copyright/trademarks, where it is simply an individual dressing up and having fun, the copyright/trademark holders are happy to ignore it, so it is not something most people need to ever consider or worry about.

Things do become a little more complicated when someone takes a picture of you in that costume. Again, for the most part, the photography of cosplayers is a recognised and accepted part of the con experience and something that the copyright/trademark holders won’t be concerned about, however there can be issues, so it is important to be aware of the potential problems.

If a cosplayer charges a photographer to take photos of them: This immediately becomes more of a problem as the cosplayer is earning money from portraying a particular character, if the portrayal of the character is ‘accurate’ which it often is (that is the point for many cosplayers) then this breaches copyright, but even if the character design is an original depiction of a recognisable character, this may be a trademark breach.
If a photographer or the cosplayer uses the images commercially: Again, as someone is earning money from the depiction of a character this becomes a problem, if the images are used for editorial purposes, that is in a news article documenting the event, then there won’t be a problem, as that is a use that is protected under UK copyright law, classed as ‘fair use’. If however the photographer and/or the cosplayer, for instance, sells prints of the image, then that is going to breach copyright and/or trademarks and is something that the copyright/trademark holder may well pursue you for if they were to become aware of it. As selling prints is something that a number of cosplayers increasingly do, this is something that people should be aware of. You are unlikely to be ‘sued’ even if the character owner finds out, but you are likely to be sent a ‘cease and desist’ notice, and you’d better take notice of that if you get one.

Away from cons, if a cosplayer gets paid for appearing in their costume, whether at a shop, or a private party, then that again is a potential problem. If the character is ‘accurate’ then it is a breach of copyright, but even if the character is just representative, then if the character is trademarked, it will be breaching trademark. For instance, if you see someone advertising ‘princess’ parties, even if they don’t use the name of a Disney princess, if they are recognisable as a particular character, even if it doesn’t match exactly, it is going to be a breach of Disney’s trademark of that character and something that may get you into trouble. There of course companies or people that have got the appropriate licence from Disney or the character copyright/trademark holder to enable them to offer ‘appearance’ services legitimately.

Considering other areas that may cause problems.

If you make a perfect character accurate costume yourself and wear it yourself to a con, that won’t cause you any problems in the UK. But what if people love your costume skills and ask if you could make them the same thing, there are a fair few cosplayers who are ‘commissioned’ to make costumes for others. If this involves an ‘accurate’ representation of a character then this is a breach of copyright, if the character is trademarked, then even if it is an original representation, it is still a breach of trademark, and if you earn money from making a costume or elements of a costume for someone else, even if just to cover your costs, you are likely to get into trouble if this came to the attention of the copyright/trademark holder.

A well known case in the UK, involved a woman who created a tardis ‘beanie’ which people loved, she was vaguely aware of copyright/trademark issues, so she didn’t make and sell beanies to other people, but she did create a crochet pattern, which she then sold to other people. This didn’t in any way or form beach any copyright, because it was her original design of a hat, but it did breach the BBCs trademark for selling tardis related garments/designs for garments, and they pursued her through the courts for a substantial sum of money. In the end the negative publicity generated by the coverage of this case, caused the BBC to drop the action, as long as she stopped selling the patterns.

So just be aware, though it is highly unlikely that just cosplaying at a con will ever cause you any problems, if you actively start making money from your hobby, you do need to be very, very aware of the rules surrounding trademarks and copyright of characters. You may not come to the attention of the rights holders so could not have any problems, but you could be unlucky.

The best and most upto date website for checking all these issues is the UK Government website which will always have the latest information (it is frequently changing as new case law is formed)

https://www.gov.uk/browse/business/intellectual-property

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About Eddie

Creator, founder of FnC and kidnappers of cosplayers at comic cons. Someone who stalks....*cough*...admire all forms of cosplay. And generally sees the fun side of things. Also have a slight obsession with Harley Quinn, only slight.

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