Don’t Worry, Supreme Court Not Deciding Jack About Cosplay
It is time to euthanize the sad, inaccurate, pathetic clickbait articles that claim that the Supreme Court of the United States is deciding something that will affect cosplay. It isn’t, the decision won’t, and you shouldn’t worry about it — because that decision was made long ago and you are already on the wrong side of it. Every costume you make and/or wear is a violation of copyright. And for the most part the copyright holders don’t care.
The Supreme Court is going to hear the case of Star Athletica, L.L.C., Petitioner v. Varsity Brands, Inc., et al. The case is about whether or not Varsity Brands can claim copyright protection on costume designs it sells, which it claims Star Athletica stole. The reason it needs to have a court decide that is because selling products based on a design is not a guarantee of establishing a copyright.
There is one way to guarantee copyright on a design, however, and that reason is why this doesn’t apply to cosplay. When you first show a design or character concept in a published work that has an established copyright, it is considered part of the overall intellectual property protected under that copyright. Every costume you make is either taken directly from a copyrighted comic book, game, movie, TV show, book, or other published material. Even if you make a costume from a variant design on Deviant Art, for example, it just means that the first one to violate the copyright was the artist, and you just joined in.
Before the cries of “Fair Use” spring up like torches in the hands of villagers, let’s clear that up. Fair Use Doctrine applies to education, research and journalism. Period. Sorry folks, but “personal fun,” “fan devotion” and especially “selling for profit” isn’t covered under Fair Use.
To be clear, the idea that the copyright holders don’t care is somewhat misleading — in fact, many of them outright encourage your personal violation of their copyright. Do you think Marvel would have published an entire series of variant covers featuring cosplayers portraying a title or main character if they didn’t want to encourage cosplay, despite that fact that it is a technically a violation of Marvel’s copyright?
Who is responsible for this massive disturbance in the cosplay force? Acccording to the site Cospuree.com (which has a great write-up of the issue at hand) it is actually the website of a public interest group called PublicKnowledge.com. I find it pretty shocking that a public interest watchdog group completely misses how cosplay, as representations of already copyrighted material, doesn’t apply at all in the Varsity Brands case.
So rest easy, cosplayers. This case before the Supreme Court has nothing to do with you, you smooth criminals (cue Michael Jackson).
