Ask John: Is Cosplay Legal?

Question:
I’ve read many of your articles pertaining to copyright infringement on anime, but how does that apply to cosplay? If a fan were to dress up as their favorite character, I don’t think that would infringe on intellectual property, but what about selling the costumes? Morally and legally, to sell a costume or prop of a copyrighted design is wrong, even if the fan is not competing with a current product from an anime or gaming company, as a company primarily focuses on digital media, figures, and art books. So, I was just wondering how the industry feels about fans or commissioners who make costumes or props for other fans, as I’ve noticed how SquareEnix has dealt with major sword vendors who have profited off intellectual property.

Answer:
I’ve never heard of cosplay becoming the source of copyright infringement accusations, but that is a certain possibility. In Japan, costuming seems to be treated much the way doujinshi is treated. In America, anime costuming doesn’t seem to have become prominent enough to cause concern for Japanese copyright owners. Copyright is a legal protection for original ideas. A clothing design created for use in a copyrighted manga or anime is copyrighted. When an artist creates an original clothing design, international copyright protects that artist’s creative vision and prevents others from misusing or profiting from that design which they did not create. Japan’s anime industry tacitly allows personal cosplay around the world. Technically, copyright owners could insist that private individuals not use or display designs from commercial anime without formal approval, but Japanese copyright owners don’t exercise that right. The Japanese anime industry understands that allowing fans to engage with anime and express an affinity with anime is ultimately good for anime. Fans that feel like a part of the anime community are more likely to support, encourage, and advertise the anime industry.

In February 2008 Square Enix filed lawsuits against a number of manufacturers producing and selling replicas of weapons from Square Enix created video games. While the individual sword designs themselves may not have been copyrighted, their unique designs are covered by the copyright of the games they appear in. Square Enix stated, “While Square Enix appreciates the enthusiasm of its fans, and values its relationship with them, it is also obligated to protect its intellectual property rights or risk weakening or losing the very rights that enable the company to continue to provide its fans with an exciting entertainment experience.” The same principle that applies to props applies to costumes. Japan’s most prominent cosplay retail specialist, Cospa, strictly manufactures and sells costumes with the fomal approval and licensing of appropriate Japanese copyright owners. The cosplay goods distributed in America by reputable specialty vendors and in conventional American retail stores is officially licensed material. Private individuals that sell home made cosplay items or costumes online or at anime conventions may validate their actions as selling original fan art, but at the same time those sales are technically a violation of copyrights. However, private American fans creating and selling their own anime costumes, props, and replicas amounts to such a small trend that it’s easily overlooked.

Japan’s commercial anime and manga industry has tolerated and even encouraged some unlicensed use of copyrighted anime concepts and images for decades. Japan has no legal “fair use” clause. Japanese corporations simply recognize that totalitarian oppression of its consumer market is counterproductive. American “fair use” laws do not allow for the commercial sale of unlicensed replicas of copyrighted material, nor even grant permission for the type of activity commonly associated with cosplay. Yet American rights holders encourage cosplay because it serves as advertising, and it engenders good will between the industry and its supporters. Although most cosplay is technically a violation of copyright laws, it will continue to be permitted and even encouraged as long as it doesn’t create a serious threat to legitimately authorized commercial enterprise. The manga and anime industry have long succeeded by respecting the principal that practical effect is more important and valuable than strict enforcement of legal authority and right.