Introduction The use or production of protected materials without the copyright holder's permission is copyright…
Bringing the “Costume Play” (cosplay) culture under the copyright regime is not a new issue in the field of IPR. On one hand, the owners or creators are getting free publicity for their characters across the world, while, on the other hand, they are skeptical about the commercial profit earned by the cosplayer. This issue again came into limelight when Japan recently considered making some drastic changes in its copyright law to regulate the cosplay culture.
This article has tried to analyse the possible copyright infringement issues against the cosplay in the light of the legislations of three countries i.e., Japan, USA and India. Furthermore, the issue of infringement has been balanced between Commercial use and fair dealing.
Cosplay and Copyright
Cosplay is a Japanese term which was coined in the year of 1984. It comes under the purview of performing art where the cosplayers put on different types of costumes and undergo bodily transformation to look alike a fictitious character. Initially, people started imitating the Japanese characters of Manga and anime. However, with the advent of the Marvel and DC Universe, the trend of cosplay transmitted all over the world.
Indeed, a two-dimensional or three-dimensional graphic work or any objective art is protected under the copyright law. However, the issue emerges when the same is converted into a wearable dress or costume. A lot of discussion and deliberation has already been done regarding the copyright ability of the fashion industry. Moreover, the cosplay culture runs on a different level and thus, it always remains a debated issue in the IPR. The nexus between cosplay and copyright comes into play when the cosplayers or the event organisers earn huge amount of money, but, the original creators of the character do not get any monetary returns for the same. Nonetheless, the same has been countered by the defence of using the art of cosplay for personal use or non-commercial use. However, considering the popularity of cosplay across the world, Japan might initiate some preventive measures to restrict the infringement of cosplay and this may attract the attention of other nations too. Thus, it will be interesting to see what kind of restrictions will be put on by the government in a country where the trend of cosplay is very prevalent.
Recent Development in Japan
The government of Japan is currently mooting to bring in some drastic amendments in the Copyright Act, 1970 to regulate the commercial use of cosplay. If these steps will be implemented, then Japan will become the first country to bring in the art of cosplay under the purview of copyright infringement. The primary reason behind the same is that some of the famous Japanese cosplay artists are earning up to $ 90,000 for their appearance in the events. However, the same earning is not shared with the owners and thus, triggering copyright infringement issues.
Rights of the author under the copyright law have been bifurcated under two categories i.e., Moral Rights (Article 18- 20) and Economic Rights (Article 21-28). However, apart from these protections, certain limitations have also been put on the copyright under which Article 30 of the Act talks about reproduction for private use. Thus, it could be one of the major exceptions against the copyright infringement of cosplay.
Just like Japan, the craze of cosplay is more or less the same in the United States. Some of the biggest cosplay conventions organised in the US are “WonderCon”, “MagaCon” and various other. For understanding the legal aspect of cosplay in the US in a better manner, first, it is important to discuss whether cosplay comes under the purview of copyright law in the US. Section 101 of the Copyright Act, 1976 defines the term useful article. “A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Furthermore, the copyright protection provided to a “useful article” has been explained as “such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
Thus, it cannot be said that the art of cosplay as a whole comes under the realm of copyright protection as per US law. However, some elements of the same could be protected. Even the Copyright Office of the Library of Congress issued a policy decision on the registrability of costume designs under the US laws, under which it stated that costumes would come under the purview of “useful article”. Also, the case of “Star Athletica, LLC v. Varsity Brands, Inc.” decided by the Supreme Court of United States could be referred where the question before the court was that under what conditions, the elements of “useful article” could be protected under the copyright law, which in this case was the dress of cheerleaders having specified “stripes”, “zigzags” and “chevron”. It was argued by the petitioner that the clothing designs could not be protected under the copyright law as the designs of the dresses were tied so closely and it was used for utilitarian purpose i.e., uniforms. However, the court rejected this argument and held that even elements of the useful article could be protected under copyright law.
Thus, it can be said that cosplay of a generic character like cowboy or farmer cannot be protected. However, cosplay or elements of cosplay like the hammer of Thor or Iron Man suit could be made copyrightable.
In the Indian scenario, the copyright issues under the fashion industry always remain in debate. Primarily, the Copyright Act, 1957 and the Designs Act, 2000 are protecting the designer clothes in India. However, various judicial pronouncements have made it clear that a design or any work cannot be protected under both the statutes at the same time. It was held in the case of “Rajesh Masrani v. Tahiliani Design Pvt. Ltd.,” that once the work has been recognised as “artistic” then it could not be protected under the Designs Act, 2000 and will only be protected under the Copyright Act, 1957. Section 15 of the Copyright Act states that fashion design could be protected under the copyright if they are “original artistic work.”
Although the trend of cosplay in India is at a very nascent stage, it is important to discuss the fate of cosplay culture in India in the light of Intellectual Property Rights. It can be seen that cosplay which was once a hobby for the Indian artist has now become a profession for them and now, they are earning a good amount of money for their appearance in the National and International venues. Currently, the discussion of IP protection in India is centred on the apparels of big designer houses. However, with the growing popularity of cosplay artists and events like Comic-Con in various parts of the country, we can soon expect a legal issue in this regard. Furthermore, the Indian Copyright law provides an exception to the infringement under Section 52 of the Act which deals with fair dealing with any work which includes private or personal use. Thus, those people who are just engaged in the cosplay activities for their hobby will not be affected by any amendment which might be brought in the near future. Only the Commercialisation of the same could be taken into consideration.
The Japanese government has not taken any firm decision regarding the issue of cosplay infringement till now as the same is in the budding stage. Majorly the government has two options i.e., to bring in drastic amendments under the Copyright Act, 1970 to regulate the cosplay culture under the country or it can advance a framework where a legal understanding could be made between the artists and the cosplay owner.
The exception of fair dealing or personal use has been enshrined by many countries under its copyright legislation. Thus, regardless of the decision taken by the Japanese government, they have to out weight the commercial misuse of cosplay against the exception of fair dealing to bring the same under regulation. The proposed amendment should balance the commercial aspect by making the cosplayers to compensate the owners as well as reliving those who are indulged in the cosplay as a hobby. Indeed, this issue might become a hot potato in the upcoming era in the countries like Japan and the US considering the popularity of cosplay, it will be still too early to say that the decision to regulate cosplay will be taken by the IP regulators in India.
Author: Yash Mehta, 4th Year B.A. LLB student of National Law University (Nagpur), an intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at [email protected].