There’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.
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.