Star Athletica’s Impact on Copyright Infringement in Cosplaying
Cosplaying is a hobby that involves dressing up as a fictional character. Certain events, especially conventions such as New York Comic Con, are a major draw for cosplayers to attend in costume. Cosplayers often spend numerous hours creating and perfecting their outfits, ensuring that the fabric for the costume is just the right color or that the patterns on their costume perfectly match the patterns on their character’s outfit. However, not everyone who wants to cosplay is willing or able to spend a lot of time creating their perfect outfit. Consequently, cosplayers often turn to costume-makers who offer their services through sites likes Etsy. Since the outfit that the cosplayer or costume-maker creates was initially designed by someone else, two questions arise: (1) whether the original creator of the costume can copyright it, and (2) whether the re-creation of the outfit constitutes copyright infringement.
Section 101 of the Copyright Act states that the design of a useful article can be copyrightable only if “such design incorporates pictorial, graphic, or sculptural features that can be identified separately from and are capable of existing independently of the utilitarian aspect” of the work.[1] “Useful articles” are those that have an “intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”[2] Since costumes are also clothing, which is considered a useful article, it is often difficult for costumes to be copyrighted, since courts are generally reluctant to assign rights to a certain category of clothes.[3]
The recent decision in Star Athletica v. Varsity Brands,[4] however, sheds new light on the question of copyright when it comes to costumes. In Star Athletica, Varsity Brands was creating cheerleading uniforms with a particular combination of chevrons, zigzags, and stripes, and Star Athletica was copying those patterns.[5] Varsity Brands argued that these unique features characterize their uniforms, while Star Athletica maintained that the patterns are “generic.”[6] In this decision, the Supreme Court clarified the interpretation of Section 101 of the Copyright Act by stating that it is not “the useful article but rather the design of the useful article” that is protected by the statute.[7]
The important issue, then, is that of separability of the useful article form the rest of the item.[8] The court came up with a two-pronged test to determine whether a useful article is eligible for copyright protection: “(1) can the feature be perceived as a two- or three-dimensional work of art separate from the useful article[,] and (2) would the feature 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.”[9] The court comes to a conclusion that the pattern on the uniform is protected because it could be “imaginatively removed . . . and applied to another medium” and because Varsity Brands in the past have recreated the pattern on other items without recreating uniforms.[10]
Since majority of the costumes that cosplayers attempt to replicate have unique patterns, those patterns may be protected by the Copyright Act in light of Star Athletica.[11] Additionally, character accessories that may not qualify as “useful articles,” such as weapons and masks, may be protected.[12] If the patterns on the characters’ outfits are eligible for copyright protection and are copyrighted, then the use of costumes containing those patterns is likely to constitute copyright infringement; however, the “fair use” defense may still be available.[13] Fair use considers the purpose and the character of use, the nature of the work, the amount and substantiality of the portion used, and the effect of use on the market for or value of the copyrighted work.[14] Costume-makers creating outfits for cosplay may find that a fair use defense is not available to them, since they are profiting from unlicensed recreation of character outfits.[15] However, regular cosplayers who make their costumes at home and do not use them for profit will likely be protected by the fair use doctrine.[16]
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