The Costume Copyright Conundrum

Happy Halloween from Knowmad Law! This time of year is always an opportunity for me to joke about how whatever couple’s costume my wife and I have settled on is infringing the intellectual property of some big media company, be it Turner Broadcasting (Rick and Morty, 2017), Netflix (Stranger Things, 2016), Disney (Inside Out, 2015) or whoever it is owns Grand Budapest Hotel and True Grit (2014 and 2011).

And, indeed, most big copyright owners would unhesitatingly take the position that unauthorized costumes depicting their fictional characters violate their exclusive rights. Disney is famously aggressive in policing unlicensed uses of their characters. Netflix has recently shown itself to be similarly intolerant of fan service, except they do it in a so-chill-totally-nailed-it way.

Yet, the IP case against cosplay isn’t self-evident or straightforward. This article discusses some of the legal issues involved in dressing up as characters from television, film and comic books.

The deal with fashion

One way to think about costumes, of course, is as just another type of clothing.

The fashion industry has always had a complicated relationship with intellectual property, especially copyright. That’s mostly because, while just about any sort of creative work is entitled to copyright protection, there’s an exception for utilitarian objects. The idea is that you don’t want companies claiming copyright in, say, the configuration of a car engine. So, while no one would deny that fashion design is a creative endeavor, the traditional legal view has been that the artistic aspects of clothing are inseparable from their utilitarian function: to cover your body.

However, that doesn’t mean there’s no intersection between copyright and fashion. For example, if you have shirt with images on it, it’s long been recognized those graphic works don’t become unprotectable just because they appear on a shirt rather than a traditional canvas. And the same goes for any non-utilitarian element that’s separable, physically or conceptually, from the clothing itself. Last year, the Supreme Court reinforced this concept in a case called about cheerleader uniforms called Star Athletica v. Varsity Brands, finding that the geometric patterns of particular uniforms were subject to copyright.

Therefore, it’s conceivable that elements of a costume can themselves be proprietary (and thus reproducing them could constitute copyright infringement) as long as those elements are original, expressive and conceptually separable from the outfit as a whole: the stars and stripes on Captain America’s shield, Darth Vader’s mask, Harry Potter’s Gryffindor insignia. This is an especially plausible and straightforward theory if the copyright owner produces authorized costumes (of which unauthorized costumes would thus be a direct copy).

On the other hand, if a costume just consists of distinctive pieces of clothing—a blue dress, blonde wig and magenta cloak for Frozen’s Elsa; a pink dress, blue windbreaker and knee-high athletic socks for Stranger Things’ Eleven—it’s hard to imagine that the get-up itself could possibly give rise to a copyright claim.

Copyright and characters

More likely, a copyright owner who complains about unauthorized costumes is raising a much more metaphysical argument: that the costume infringes their copyright in the character depicted.

There’s a long precedent of U.S. courts holding that fictional characters are subject to copyright. That's a little odd when you think about it. Copyright applies to expressive works that are fixed in a tangible medium. Characters are not, by themselves, creative works. Nor can they be fixed in a medium. They are free-floating concepts, exactly the kind of abstract ideas to which copyright by definition does not extend. If the mutual appearance of a character in two works makes those works so similar that one is effectively a reproduction (or derivative work) of the other, then fair enough. But as often as not fictional characters are treated, without any further analysis, as independently protectable, from Sam Spade to Rocky Balboa to, most recently, the Batmobile (a 2015 decision by the Ninth Circuit that I complained about at length).

Thus, notwithstanding the lack of any well-reasoned legal basis, there’s little question that media companies have a copyright interest in the characters that appear in their films, television shows and comic books.

Whether a costume infringes a character is another question, however. If all you’re doing is dressing up as a character, using solely pieces that you found or bought or adapted (again, think pink Eleven dress or blonde Elsa wig), an infringement argument becomes pretty strained. A copyright owner could conceivably claim that a cosplay artist (especially someone doing it commercially) is violating their exclusive right to performance of a work, but the performance right generally arises with things like musical compositions or dramatic works or dance choreography. As far as I’m aware, the unauthorized “performance” of a character (simply by dressing up like that character) would be a novel theory.

If you’re actually making the costume and particularly if you’re selling it,

that’s a different matter. The claim there would most likely be that the costume is a derivative work of the character (or maybe of the works in which the character appears?), and therefore by creating and/or distributing it you are committing copyright infringement. This theory would seem to be in tension with the doctrine of utilitarian articles discussed above: how can something (like clothing) that is not itself eligible for copyright protection be an infringing derivative work? However, a very similar argument was made in the Batmobile case, where the defendant was making and selling actual cars, and the court rejected it, reasoning that the Batmobile was under copyright and therefore cars that looked like the Batmobile were copyright infringement. The same would presumably go for costumes.

Characters as trademarks

In an added wrinkle, media companies also routinely attempt to protect characters as trademarks. The legal reasoning here is a little dubious as well. Trademark law protects only things that consumers regard as designations of origin, and my assumption is that most consumers regard characters as characters, not as trademarks.

Nevertheless, it’s an established theory and one that courts would probably endorse. Disney, for one, has a lot riding on trademark protection for characters, since that’s likely how it will attempt to continue protecting Mickey Mouse once Steamboat Willie passes into the public domain in 2024 (barring another extension in copyright term by Congress). The copyright in the work may expire, but as long as consumers regard any appearance by Mickey as an endorsement by his (former) masters, Disney may be able to keep monopolizing him.

However, trademark exclusivity only extends to trademark usage. It’s not clear to me that characters ever function as source indicators, with perhaps the exception of advertising mascots like Tony the Tiger and a handful of characters who have become closely associated with a particular product (like Snoopy for insurance). But what’s certainly not trademark usage is dressing up as a character for wholly non-commercial purposes. If you’re not offering any goods or services, by definition there can be no trademark infringement.

If you’re selling costumes, that’s something else, of course. There might also be a colorable trademark claim if you’re a professional impersonator or cosplay artist, getting paid for appearances or charging for photos. This is presumably the concern that causes costume manufacturers to adopt hilarious generic names for what are obviously unauthorized products based on popular media properties. I’m not sure why they think that the name of a character would be trademark infringement whereas the character’s appearance would not, but I would hate to discourage the makers of such Halloween favorites as "Stripey Dude" and "Green Villain."

#copyright