Cosplay & Copyright

Cosplayer, Jahara Jayde

Jahara Jayde is a mom, content creator, and most famous for her amazing cosplays ranging from the Sailor Scouts from Sailor Moon to the beloved Link from Legend of Zelda. Jahara started doing simple cosplays with costumes purchased at retail. Now Jahara has evolved into a well-known figure in the cosplay community where she often makes her own costumes.

As of mid-May 2023, Jahara has amassed 185K followers on Instagram and 577K on TikTok, where she shows off her cosplays of characters in anime and video games. We spoke to Jahara about her process for creating cosplays, her career as a cosplayer, and the issues she faces with netizens infringing on her content.

As Jahara’s brand has grown and she’s become more widely known in the cosplay community, she has had the opportunity to create more sponsored content. Given the nature of the content, various brands frequently provide costumes to feature on her various media platforms. The costumes are typically of original characters rather than those associated with copyrighted properties, to prevent copyright infringement or other legal issues, unless the brand has obtained the rights to use the character.

Jahara creates copyrighted content by creating and posting videos and photos of her cosplays. Jahara indicated that people have used her content without her consent or crediting her, for profit and to increase their social media presence. She often must file claims for misuse of her content, and the process of getting a post taken down on TikTok or Instagram can be slow and tedious. Fortunately, because her face is a part of the content it is easy to claim ownership.

Jahara told us she is hesitant to sell merchandise relating to the characters she cosplays to avoid infringing on the rights of copyright holders:

Finally, Jahara explained why she will not cosplay certain characters - typically for personal reasons rather than copyright reasons - and what she has learned as a cosplayer:

Cosplayer, Sunflower

Sunflower is an avid cosplayer, and recently received a master’s degree. As of mid-May 2023, she had almost 21K followers on TikTok and 7K on Instagram. Sunflower’s love for anime and creativity in her designs are shown in her cosplays. Like many beginning cosplayers, she bought costumes from retailers, such as uwowo, but then started designing and creating her cosplays.

Sunflower described her design process, how she creates cosplays, and how and why she updates her cosplays:

Recently the Japanese government considered a bill that would cite specific situations where cosplayers would be required to pay fees to the copyright holders of the anime and video games they are referencing. I asked Sunflower her thoughts on this bill if applied to the U.S:

Copyright Law

The Copyright Act of 1976 gives copyright owners the exclusive rights of reproduction, adaptation, distribution, public display, and performance to their registered works. To be protected a work must have three basic elements, it must be an original work, it must meet a certain standard of creativity, and it must be fixed to a tangible medium (Cornell). In the United States, fictional characters can be protected by copyright law. Specifically, a fictional character can be protected separately from the underlying works when the character is sufficiently unique and distinctive to warrant that protection. In copyright law, the delineation test is a measure used to determine whether a character is sufficiently original and unique to warrant copyright protection. The more distinctive the character is, the more likely it is to be protected by copyright. Characters that are not well delineated are, “less developed and less likely to be protected and those characters are less expression and more idea”(Goldman). The “story being told'' test measures the importance of a character in its story. Its creation begins with the character Sam Spade :

Dashiell Hammett created Sam Spade when he wrote The Maltese Falcon. Hammett licensed the exclusive rights to use the book in movies, radio, and television to Warner Brothers. Hammett later wrote other stories with Sam Spade. Warner Bros. complained that it owned exclusive rights to the character. Ironically, the court protected Hammett’s right as the creator to use Sam Spade in future stories by deciding that the character was not protected by copyright. Sam Spade is just a vehicle for telling the story and is not the story itself…. A character is protected under the “story being told” test when he dominates the story in a way that there would be no story without him (Goldman).

So, copyright law does recognize that some characters may be iconic enough to warrant their own copyright protection. Ms. Filak Rose explained to us that copyright law is intended to safeguard expressive works, such as the clothing of the character that is being cosplayed. Since functional items frequently have expressive design features, it can be challenging to determine precisely what falls under this category.

Star Athletica v. Varsity Brands was a U.S. Supreme Court case that dealt with the question of what functional elements of a design could be protected by copyright law (Justia Law). The case involved the design of cheerleader uniforms that featured specific patterns such as stripes, zigzags, and chevrons. It was argued that the clothing designs could not be protected under copyright law as they were utilitarian and tied closely to the function of the uniforms. However, the court rejected this argument, ruling that “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.” (Star Athletica 2017, and Meredith Filak Rose 2018).

Ms. Filak Rose described whether a functional item like Thor’s Hammer would be copyrightable:

We asked Ms. Filak Rose - As a cosplayer dressing up as your favorite anime character attending your local convention, should you be worried about companies taking action for your portrayal of their copyrighted characters? She believes the probability of copyright holders pursuing legal action against such cosplayers for their portrayal of their characters is low:

However, selling commissioned cosplay costumes without a license from the copyright holder can be copyright infringement. This is especially applicable to mass-produced costumes that could potentially harm the bottom line for the copyright holder's products (Meredith Filak Rose 2018).

Cosplay and Fair Use?

Fair use allows a copyrighted work to be used without consent from the holder; classic examples of fair use include parodies or criticism and commentary. Ms. Filak Rose described fair use as a “safety valve” in copyright law to allow copyright law and the 1st amendment to co-exist. With regards to cosplay and how the courts would interpret whether fair use applies we would have to look at the “transformativeness” of the cosplay (Molly Rose Madonia 2016):

For a cosplay to be considered "transformative" under copyright law, it must add new expression or meaning to the original work. Even creating a faithful, real-life replica of an imaginary outfit may be transformative enough to satisfy this, especially if pieces of the character are ambiguous. Creating that cosplay to suit you as the cosplayer is something that Jahara Jayde and Sunflower both stressed, and that they strive to make a cosplay recognizable for the character, but adapted to fit themselves.

References

Cornell Legal Information Institute. (n.d.). 17 U.S. Code § 106 - exclusive rights in copyrighted works. Legal Information Institute. https://www.law.cornell.edu/uscode/text/17/106

Goldman, K. (2021, July 13). Are fictional characters protected under copyright law?. Jane Friedman. https://www.janefriedman.com/are-fictional-characters-protected-under-copyright-law/ 

Madonia,Molly Rose, All's Fair in Copyright and Costumes: Fair Use Defense to CopyrightInfringement in Cosplay, 20 Marq. Intellectual Property L. Rev. 177 (2016). https://scholarship.law.marquette.edu/iplr/vol20/iss1/1/ 

Rose, Meredith Filak. “Copyright and Cosplay: Working with an Awkward Fit.” Public Knowledge, 29 Aug. 2018, https://publicknowledge.org/copyright-and-cosplay-working-with-an-awkward-fit/ 

Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. ___ (2017). Justia Law. (n.d.). https://supreme.justia.com/cases/federal/us/580/15-866/