Can Companies Criminalize Cosplay?

The upcoming Supreme Court case of Star Athletica, L.L.C., Petitioner v. Varsity Brands, Inc., et al. has a lot of people in the geek community concerned that this may be the case. The case involves cheerleading uniforms—but it does have potential ramifications for cosplay and wearable fandom items.

In this case, Varsity claims that designs can be copyrighted, while Star Athletica disagrees. Historically, Star Athletica is right—overall clothing design can generally not be copyrighted (though textile prints can). However, this past September DC Comics won a suit against Mark Towle, a maker of replica pop culture cars and bikes who operates out of Gotham Garage. In the case of DC Comics v. Mark Towle, the US District Court for the Central District of California ruled that the Batmobile is a “copyrightable character” and that:

“The Batmobile need not have a consistent appearance in every context, so long as the character has distinctive character traits and attributes” (p. 24).

If you read further along in the opinion (which I highly recommend because it includes lines like “Holy copyright law, Batman!”), Towle advertised his products as “Batmobiles.” He also made about $90,000 per replica. DC took action, and Towle volleyed back with claims that ultimately did not hold up in court. In sum, Towle claimed the Batmobile was not protected by copyright. The Court disagreed and determined that the Batmobile has specific characteristics that identify it as a character (a “sidekick, if not an extension of Batman’s own persona” [p. 8]). Further, the Court agreed that Towle intentionally and knowingly made and advertised Batmobile cars based off…the Batmobile as we know we it from DC Comics (and more specifically the onomatopoeia laden* 1966 television show and 1989 movie with Michael Keeton [still the best Batman]).

Now, in the case of Star Athletica v. Varsity Brands, if Varsity gets its way then this opens the gate for creators and companies to copyright costume designs. If a design is copyrightable, then there is potential for lawsuits. But, this may not be as extreme as it seems.

The folks over at Ef Yeah Copyright Law weighed in with:

“…it’s very unlikely that the Court will put any impenetrable bars on what cosplayers can create—though it may impact whether commercial retailers can sell clothing that looks like film or TV show costumes.”

We won’t really know the potential ramifications of the case until the ruling is determined and made available, but some things of note: comic book characters are not listed in the Copyright Act, but they are considered under its protection if they are particularly distinctive. This same clause, however, does not apply to literary characters (are comics not literary?). Let me put it to you this way, if you are concerned for an upcoming con, you can dress as Captain Nemo for your next con, but you better watch out if you go as Captain Nemo from The League of Extraordinary Gentlemen if  said Captain displays “consistent, identifiable character traits and attributes” with the Captain Nemo of the comic. (Actually, no one really cares about this because The League of Extraordinary Gentlemen doesn’t make enough money to warrant a lawsuit of this type.)

In related news, Towle recently petitioned the Supreme Court to review the decision. Regardless, it is certainly an intriguing time for (re)considering copyright, intellectual property, and creativity.

(Note: If you are in need of a Batman-esque character for an upcoming con, I recommend you dress as the Batish© character. It’s like the Batman, but without dead parents, just a strange fascination with bats, vigilantism, and excessive brooding. Gender non definable which always fucks people up, especially courts.)

*No word yet on whether or not “visual onomatopias” such as “Pow! Boff! Thwack!” are characters in their own right.

Ginnis Tonik

Ginnis Tonik

Smashing the patriarchy with glitter, pink lipstick, and cowboy boots. You can follow her on Instagram @ginnistonik