The Next Generation of Cosplay and Conventions: Is Cosplay Copyright Infringement?

Abstract

Copyright protections relating to characters and costumes have been of concern to the field of intellectual property for generations. Traditionally, copyright laws were designed to protect a copyright holder from another artist copying their work. A growing trend, however, is for a copyright holder to have concerns not only about another artist taking from their works, but that fans of the copyright holder herself will infringe on her work. This infringement occurs through fan-generated fiction (“fan fiction”), fan-subbing, cosplay, and other fan-made outlets. This article focuses on “cosplaying,” whose legal implications have not yet been fully explored in legal literature. This article provides an in depth analysis of the doctrines of copyright infringement and fair use to the cosplay phenomenon, arguing that the current fair use defense is inadequate to protect the creative impulses of fans and should be modified. First, the judicial addition of a “social benefits” test to the first prong -- the purpose and character of the use -- of the fair use assessment is explored. Second, it is argued that the fourth factor -- the market assessment -- should be judicially modified to consider whether the fan-based activities in question are complementary rather than competitive to the copyright holder’s interests. It is further argued that a cost-benefit assessment of cosplay in relation to the copyright holder is an important consideration.