Cosplay and copyright laws are not necessarily friends. The characters that we love to cosplay are theoretically protected by copyright laws, but the question has never become a court case that would give us a definitive answer to whether or not cosplaying is illegal. However, we can use cues from other court cases and a basic understanding of fair use laws to determine what is actually protected under the law.
In general, if you are simply wearing a cosplay at a convention or posting photos online, you don’t need to worry about being sued, since your costume will likely fall under fair use. However, selling costumes, photograph prints, or prop replicas may be considered copyright infringement.
It’s also important to understand the relationship that mass media companies have with the cosplay community. While it hasn’t always been the case, many companies embrace fan communities, including fanart, cosplay, and more, because in the end it is free advertising. Unless you are participating in something that will take profits away from the company, it’s unlikely that they will pursue any legal action.
That being said, I am not a lawyer and nothing in this article constitutes legal advice. Cosplay at your own risk!
Cosplay and copyright laws
Cosplay is in a legal grey area when it comes to copyright laws. Functional clothing is not subject to copyright protection, but character designs are. The more specific and recognizable the character design is, the more likely it is to be protected under copyright laws.
For example, a character from a book series that does not have a set character design is less likely to be protected under copyright laws than a comic book character who’s costume is specifically designed and drawn.
In addition, design elements like logos are protected under trademark laws and unauthorized use could be considered infringement. So while a generic blue and red superhero suit might be acceptable, using the Superman logo would make it technically illegal and more likely to lose a copyright case.
Basically, if you are trying to create an exact replica of an official character design for your cosplay, there is theoretically the chance you could get sued for copyright infringement. If you have a cosplay-related business or make money as a cosplayer, there is a slightly greater chance you could find yourself in legal trouble.
Fair use and cosplay
Fair use is a section of the Copyright Act that allows for the unlicensed use of copyright-protected works under certain situations. It was intended to allow for the use of copyrighted material for critique, education, reporting, research, and in some cases creative expression.
The frustrating part is that the fair use clause is not cut and dry. Four separate criteria are used under the fair use clause and the more of these criteria you can check, the more likely your use of the copyrighted material will be considered fair use.
The fair use criteria include:
- The purpose of your use of the copyrighted work. This includes commercial vs. educational vs. personal uses. So, if you are making money from your cosplay you are less likely to fall under fair use. This category also includes the transformative nature of the use. For example, a gender-bent or gijinka cosplay is more likely to be covered under the fair use clause.
- The nature of the copyrighted material. This has to do with the type of work of the original material. Creative materials (including movies, comics, games, and animation) are less likely to be covered by fair use.
- The amount of the copyrighted material that’s used. Since the cosplay and costume of a character is only a tiny portion of an entire show, this clause would likely work in favor of cosplay.
- The effect on the market of the original copyrighted material. This basically means: how much is the cosplay affecting the bottom line of the company that owns the copyright? For individuals, cosplaying is unlikely to have any negative effect on the market. However, a company that mass produces and sells Disney princess costumes, for example, has a lot more to worry about.
There has never been a court case to test whether or not a personal cosplay would fall under fair use. If there is no commercial intent, it’s possible that cosplaying could fall into the fair use category and not constitute copyright infringement. However, no one can know for sure until someone actually gets sued for it.
Live-action costumes vs. drawn character designs
Real-life, functional clothing is not subject to copyright protection laws, so there is more leeway when cosplaying a character from a live-action source vs. a cartoon or game. For example, the gowns that are worn in Game of Thrones can be replicated without infringing on a copyright.
However, if you are trying to make an exact copy of a drawn or animated design, you’re more likely to run into trouble with copyright laws, especially if there are specific design elements or logos involved.
Copyright of props and armor
Armor and props are not considered to be functional clothing, so these elements of cosplay have a different relationship to copyright law. Whether you are creating a replica of a real-life prop used in a movie (Thor’s hammer) or a replica based on an animation or drawing (the Millennium puzzle), these are probably an infringement on the copyright holder’s rights and would not be protected under fair use.
Armor is included in this category because, let’s face it, the armor that we make for cosplay rarely serves an actual function and is just there for character design. Legally, I believe it would be considered a sculpture, so replicas would be protected in a similar fashion to actual sculpture works of art.
Is it illegal to wear cosplay?
Unfortunately, cosplay and copyright are not clear cut, so I can only give you a completely unsatisfactory answer. Is it illegal to wear cosplay? Maybe, but it depends.
Cosplay is, at its core, a type of fanart. While cosplay and other types of fan art could fall under fair use, it’s just as possible that they constitute copyright infringement. Technically, cosplaying without getting permission from the copyright holder is illegal. This includes both the act of creating a costume and going out in public and posting photos on social media platforms.
Are you going to get sued for wearing cosplay?
If you are making cosplay for personal use and not making any significant profit, you are highly unlikely to be sued. In fact, I could not find evidence that that has ever happened. It would simply do more harm than good for a mass media company to sue its own fans. If they were to sue everyone who cosplayed without receiving official permission, it would cost way too much money and they would lose revenue due to backlash from the fan community.
Most of the time, copyright holders will actually encourage cosplay and other fan activities as long as they aren’t hurting profits. This is because fan culture, including cosplay, is essentially a form of free advertising for the company. Even though it isn’t technically legal (probably), you’re not going to get sued because of a cosplay.
Is it illegal to sell or commission cosplay?
Here’s where you are more likely to run into legal trouble. Selling cosplay costumes without a license from the copyright holders is illegal. This especially applies to any mass-produced costumes that would eat into the market of the copyright holders.
Unfortunately, creating commissioned costumes without a license is also technically illegal. If you get sued, it is highly unlikely to win any kind of fair use case. However, if you are just a small one-person business that creates commissioned costumes for cosplayers, you’re unlikely to be on the radar of a major company and are unlikely to get sued. As long as you’re marketing yourself as a general cosplay commissioner and not only superhero costumes, or only princess costumes, you probably won’t be targeted. However, I am not a lawyer so make sure you consider the risks before starting your cosplay commission business.
Other types of cosplay money-making that might not be legal are sponsored social media posts and selling prints of your costumes. Sponsored social media posts are a new phenomenon and haven’t really been tested legally. Whereas cosplay prints haven’t been targeted by copyright holders probably because they don’t take away from the bottom line of the companies.
These types of cosplay products are also unique because it’s more about the cosplayer than the costume. What I mean is that people will buy the prints because they love the cosplayer, and cosplayers will be sponsored because they are influencers in the community. So, while it’s technically illegal, I’m not sure it’s likely you will get sued. But of course, be careful and consult a lawyer if you want legal advice.
Are you going to get sued for selling cosplay-related items?
You can get sued for selling cosplay and cosplay-related items, like prints and props. If you want to start a business in the cosplay realm, it’s best to obtain a license from the copyright holder so that you can officially protect yourself from being sued.
If you are just making one-off commissions, you’re less likely to be in danger of being sued. However, it’s still a good idea to look at the relationship of the copyright holding company with the market. For example, Disney is known for being quick to sue for copyright infringement while some gaming companies, like Blizzard, tend to be more friendly to the cosplay market. So take that into account when deciding which cosplays to make as commissions, and sell as prints.