Costumes and Copyrights: Can you afford to wear that?

By Katie Scholz
July 18, 2018

https://depositphotos.com/105441350/stock-photo-warrior-woman-holds-bow.htmlThere’s a season every year where individuals dress-up in homemade costumes and gather for tricks, treats… and comic books?  That’s right, it’s comic-con season!  Many fans proudly wear costumes that they create themselves, dressing up as their favorite super hero, anime cartoon, or video game character.  However, one thing they probably are not considering is whether those costumes could put them in jeopardy of a copyright infringement claim.  But, since the costume industry as a whole is a multi-billion dollar industry in the United States alone, it is a consideration that could have costly consequences.

Historically, protecting fashionable elements within clothing designs has been difficult.  Copyright protection is generally not available for “useful articles” unless the article incorporates pictorial, graphic or sculptural features that are separate from, and can exist independently of, the item of clothing.   Additionally, due to the length of time it can take to receive a copyright, the fast fashion industry often sees allegations of infringement long before a registration is granted.

On March 22, 2017, the Supreme Court issued its opinion in Star Athletica, LLC v. Varsity Brands, Inc., officially found that a feature within the design of a useful article could be eligible for copyright protection by satisfying the standard two-part test for copyright infringement: if the feature “(1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work — either on its own or fixed in some other tangible medium of expression — if it were imagined separately from the useful article into which it is incorporated.”  The case concerned cheerleader uniforms by Varsity Brands, which had several copyright registrations on two-dimensional designs, which it then incorporated as surface decorations on its cheer costumes.  The lawsuit alleges that Star Athletica infringed by creating similar cheerleader costumes.

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For everyday clothing, this ruling has some important connotations.  Specifically, it opens the door to additional protection for luxury brands, and that some fast fashion retailers may now think twice before coming out with their own similar lines.  Instead of relying more on trademarks for protection, copyright law may now protect more conceptual aspects of designs, giving runway designers additional options to prevent coopting of their ideas into fast fashion outlet clothing lines.

But how does this impact the costume industry?  As children start thinking about their Halloween attire, and as comic-con attendees contemplate their costumes, it is worth taking a look at how this ruling translates to the costume industry.  Copyright infringement damages can be significant, with statutory damages starting at $750 per instance of infringement.

Cosplayers attending comic-con, or other cosplay events, spend a lot of time ensuring that their costume matches their intended character’s outfit – from color, cut, and accessories.  Some costumes are made at home, while others can be purchased online – often from small retailers on sites such as Etsy.  Additionally, many comic-con conventions feature vendors who sell costumes made for future events.  Since the goal is to ‘copy’ the design of the original character, it raises the question of whether the maker and / or the wearer could be liable for copyright infringement.

Costumes do serve a utilitarian purpose – they double as clothing for the wearer.  However, courts have held that this reasoning does not apply to any mask used as part of the costume, and potentially may not apply to additional articles such as stylistic gloves, swords, shields, etc.  For the costume itself, the next step is to determine (1) whether there is separability between the copyrightable design and the useful article, and (2) whether the separable feature would separately qualify as “protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.”  Unfortunately for many cosplay costume creators, if a pattern used in a character’s outfit is eligible for copyright protection (or has been registered by the copyright office), it is likely that manufacturing that costume would open the door to copyright infringement.

The next question to ask is whether there might be a defense – is making a costume for cosplay (or trick-or-treating) an example of fair use?  Fair use depends on four factors, laid out in 17 USC § 107: (1) purpose and character of use, (2) nature of the copyrighted work, (3) amount / substantiality of the portion used, and (4) the effect on the potential market / value of the copyrighted work.  For those making costumes for profit, the fair use defense is likely not available if the underlying work is copyrightable.  However, for those making their own costumes at home, and not for sale, there may be a fair use defense because the nature is noncommercial and there will be no sale of the costume that could affect the market.

So, if you were planning to go to a Comic-con this year as your favorite Marvel character, you may want to get started on your costume now. And if you were planning on making a costume to sell, you may want to consider carefully whether there are any features that could qualify for copyright protection.  Because failure to do so, far from being a treat, could open you up to a tricky situation.

The Author

Katie Scholz

Katie Scholz is an Associate level Patent Attorney and Trademark practicing in the Twin Cities area. She is a registered member of the Minnesota State Bar and the United States Patent and Trademark Bar.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 8 Comments comments.

  1. Anon July 18, 2018 12:50 pm

    “However, for those making their own costumes at home, and not for sale, there may be a fair use defense because the nature is noncommercial and there will be no sale of the costume that could affect the market.”

    Except that making one’s own costume means one less purchase of a costume on the market, hence it does affect the market.

    It’s basically Wickard v. Filburn all over again. Classic 1L case.

  2. Anon July 19, 2018 12:45 am

    Thanks sister Anon.

    Ah yes – Wickard.

    An early example of nose mashing (which just goes to show that such happens outside of patent law).

  3. Benny July 19, 2018 6:40 am

    Anon,
    (@1), not necessarily so. You can’t automatically assume that the citizen would purchase an item they did not manufacture themselves – or even purchase a legal copy.

  4. That Patent Guy July 19, 2018 7:12 am

    This article reminded me of the costuming fans who hilariously replicated a particularly “loud” carpet pattern of the hotel where a comic convention was being held:

    https://io9.gizmodo.com/cosplayers-threatened-with-legal-action-for-hotel-carpe-1366152096

    This got so popular with the fans that a few years later when the hotel replaced the carpet with some other, more neutral pattern, the fans memorialized the cosplayers and the previous carpet by remixing replicas of the pattern into other comic costume ideas, and even adorning cars and fantasy weapon replicas with it:

    https://farm9.static.flickr.com/8380/28929423383_88db34d9df_b.jpg

    https://2.bp.blogspot.com/-PHpUOgzjReU/Wa8jCV1s8WI/AAAAAAAB8h8/3htPsua-
    JHMzbXuEt_vn22gJ_kXBK0DvwCEwYBhgL/s1600/IMG_8227.jpg

    https://cdn-blog.adafruit.com/uploads/2017/08/Dragon-Con-Spider-Man-suit.jpg

    https://1.bp.blogspot.com/-UOPlu0lY7GY/Wa8jCJ8_w6I/AAAAAAAB8io/yEPw1YcM1WYXZZ7LHvKuqNtm7RNwRzv7ACEwYBhgL/s1600/2017-09-04%2B00.09.52-1.jpg

    https://farm9.static.flickr.com/8131/29668584751_05723c6e83_b.jpg

    http://dailydragon.dragoncon.org/wp-content/uploads/Parade4.jpg

  5. Carl July 19, 2018 9:08 am

    There is also the issue of the character itself being protected by copyright. Certain well-developed graphic characters (i.e. Superman or Darth Vader) are protected by copyright apart from any consideration of their costumes. Therefore, don’t we have to consider how manufacturing a Darth Vader costume implicates Disney’s rights in the character itself?

  6. Carl July 19, 2018 9:17 am

    There is also the issue of whether the character itself is protected by copyright. Certain well-developed graphic characters are protected by copyright (i.e. Darth Vader). Don’t we have to consider how Disney’s rights in Darth Vader are implicated by an unlicensed costume manufacturer, apart from any rights in the clothing design?

  7. Paul Morgan July 19, 2018 9:48 am

    Fortunately for individual copyright or patent de minimus infringers, even if detected by the IP owner the legal costs of lawsuit enforcments normally keeps such individuals out of any more legal trouble than a threatening letter. That is their best “defense.”

  8. Anon July 19, 2018 10:56 am

    Benny,

    I suggest that you read (and have a lawyer explain to you) the case of Wickard (as provided by sister Anon).

    It appears that you want to take a non-legal “common sense” approach that simply may not be applicable given the existing legal context.

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