By: Sydney Sun
The emotional, social, and communal aspects of fandom and cosplay are not necessarily as widely understood although cosplay has become popular in recent years. Cosplay, a colloquial phrase short for “costume play,” is a type of performance art in which participants create and wear elaborate costumes created in the image of their favorite fictional characters.[1] In recent years, cosplay has become one of the most popular activities at conventions. However, not all costumes are of the same extremity. Some designs are detailed replicas of the original while other costumes are more causal, where the person evokes a likeness instead. [2] Though costumes are important, cosplay is far more than creating costumes. It is a social activity where like-minded people hare their love and appreciation of the characters portrayed in the media.[3] Creating costumes and performing are the ways cosplayers express to others how a fandom has changed or impacted their lives. [4]
The Supreme Court will hear the upcoming case Star Athletica, LLC. v. Varsity Brands, Inc. The issue before the court is deciding the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act.[5] Varsity Brands claims that Star Varsity violated its copyright by designing a uniform too similar to its own. Star Varsity argued that the copied designs are “useful articles,” which are not copyrightable, and that the elements copied were not physically or conceptually separable from the uniforms.[6] The Sixth Circuit Court of Appeals ruled in favor of Varsity Brands, with the court deciding that uniform designs akin to fabric patterns, which are copyrightable.
What is a “useful article” and why are cosplayers involved? In 1991, the Copyright Office released a policy decision stating that costumes are “useful articles” and “will be registrable only upon a finding of separable artistic authorship.” [7] A “useful article” is “an article that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”[8] Courts have examined costume registrability several times, fluctuating between findings that costumes are unregistrable useful articles which make them uncopyrightable, and other times finding separate artistic expression which would make them copyrightable.
How does this affect cosplayers? If the Supreme Court finds for Varsity Brands, they would have copyright protection over their specific strips and designs. As the distinction between an element that is artistic expression and a useful article is so blurred, a ruling in favor of Varsity Brands may set a precedent that can make cosplay costumes copyrightable. The Amicus Brief that was filed on behalf of cosplayers argues that traditional notions of functionality and utility must be discarded.[9] Instead functionality and utility of uniforms and costumes should be viewed as extending beyond the basic clothing function of covering the body, instead functioning to identify the wearer as a member of a group, club, or culture. [10] Utility is not merely having a utilitarian function but a function of identification. Thus, the utility of making uniforms and costumes not artistic expressions that are copyrightable, but rather useful articles that are not copyrightable.
Every year thousands attend conventions dedicated to their favorite shows, games, and comics where the attendees are a mixture of “geeks,” “nerds,” and “gamers” who are aficionados that are highly devoted to their respective fandoms and modes of entertainment.[11] These conventions typically last for several days, unite people with similar passions, and promote solidarity within the fandom community. [12] While individuals are “fans” of something, fandom is more than simply being a fan. It is a community and way of life that transcends race, gender, religion, and creed.[13] Fan culture is sustained through participation, creation, and support of new fan made content which serves as the vehicle in which fans can interact and discuss.[14] Ultimately, while each “fans” life may be different, all the participants enter into fandom to search of community and a sense of acceptance and belonging.[15] The journey, effort, and time it takes to be in fandom is great, and cosplay is the physical manifestation of that effort. The Amicus Brief strives to protect those values, not just the mere costume, but the symbolic values of the costume. A place of belonging for people who otherwise would be isolated and alone. A place where, passion, love, and magic come together to manifest itself in physical embodiment of the heroes and characters who helped a fan find fandom.
[1] See Kane Anderson, Becoming Batman: Cosplay, Performance, and Ludic Transformation at Comic-Con, in Play, Performance, and Identity: How Institutions Structure Ludic Spaces 105, 105-06 (Matt Omasta & Drew Chappell eds., 2015).
[2] Id.
[3] See Molly McIsaac, What Is Cosplay and Why Do People Do It?, iFanboy (Dec. 6, 2012), https://ifanboy.com/articles/what-is-cosplay-and-why-do-people-do-it/.
[4] Id.
[5] Brief for the Royal Manticoran Navy: The Official Honor Harrington Fan Association, Inc. Supporting Petitioner, Star Athetica, L.L.C. v. Varsity Brands, Inc., et al., (No. 15-866), 2016.
[6] Id.
[7] 17 U.S.C. §§106(2), 106(3) (2012).
[8] Id.
[9] Supra note 5
[10] Supra note 5 at 20.
[11] See Timothy Geigner, Cosplayer Sent Cease & Desist by Carpet Company for Hotel Carpet Camouflage, Techdirt (Sept. 23, 2013), https://www.techdirt.com/articles/20130923/04074424621/cosplayer-sued-carpet-company-because-lawyers.shtml.
[12] See generally Paul Mullins, Performing Fan Culture: The Material Experience of Fandom and Conventions, Archaeology & Material Culture, WordPress (Jul. 4, 2013), https://paulmullins.wordpress.com/2013/07/04/performing-fan-culture-the-material-experience-of-fandom-and-conventions/.
[13] John Fiske, Understanding Pop Culture 59, 112, 116 (1989).
[14] Katherine Larsen & Lynn S. Zubernis, Fangasm: Supernatural Fangirls 10 (2013) at 14 (“Fandom offers the possibility of laying aside the whispering – or worse, the complete silence – that is usually the burden of the closet fan. It offers up community, support, friendship, reassurance, and fun.”).
[15] Id. at 10 (“Fans become psychologically absorbed with a celebrity as a way of establishing their own identity and finding emotional fulfillment.”).