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Cosplay

COSPLAY, COPYRIGHT, AND CARPET

Throughout the world, fans assemble at conventions and gatherings adorned in intricate costumes, gravity-defying hairstyles, and elaborate make-up modeled after their favorite characters from popular culture.  The trend is called “cosplaying” and those who engage in it are called “cosplayers.”  As anyone who has attended or seen pictures from a recent convention knows, cosplaying in recent years has gone far beyond a lone Trekkie wearing a Federation redshirt.  Cosplayers have recreated entire casts of characters, including the most obscure.  Indeed, an emerging trend in cosplay has been to seek novelty, as a cosplayer wants to strike out into new territory rather than being the 10,000th person to don a Darth Vader costume.  Many serious cosplayers have ramped up their skills at finding unique and complex subjects to show off their art.

Thus Volpin Props, renowned and superbly talented designer of videogame, fantasy, and real-world prop replicas, recreated the design of the carpet at the Marriott Marquis Atlanta hotel.  Yes, a hotel carpet.  This particular Marriott is a host hotel for Dragon*Con, one of America’s largest conventions, and would be a familiar sight to Dragon*Con attendees.  Volpin not only recreated the design of the carpet, but also created costumes to be worn at Dragon*Con which incorporated the design of the carpet.  In a virtuosic display of optical illusion and creativity, the costumes were designed so that those wearing the costumes would blend into the carpet if they laid themselves down in the proper position.  The result was the stunning photo above.

The costumes were such a hit that Volpin made the fabric available for purchase on Spoonflower–a website which enables the user to create and sell custom fabric prints. Last week, Volpin Props announced on its Facebook page that the carpet designer requested the design be pulled:

Of all the things to get a Cease and Desist over, of ALL the replicas I’ve made over the years, I’ve received one from Courtisan Inc, designers if (sic) the Marriott Marquis Atlanta hotel carpet. Spoonflower has pulled the design, as is their right, so sorry everyone who wanted some fabric of their own! 

The absurdity is palpable.

-Volpin

The announcement has since spread like wildfire throughout the online cosplay community.  Upon reading the comments on Volpin’s page and articles on other blogs, it seems that some have blurred the distinction between (1) the online sale of the fabric design through Spoonflower, and (2) a cosplayer wearing the carpet costume, taking pictures, and posting them on social media pages.  Here is a breakdown of some relevant law on the subject:

Fabric designs enjoy more protection under copyright law than costumes themselves.  Some costumes are not even copyrightable at all.  Garments are generally considered “useful articles” which are incapable of copyright protection, unless the garment “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.” 17 U.S.C. § 101. This separability must at least be physical or conceptual in nature to be entitled to protection under copyright law. United States Copyright Office Policy Decision: Registrability of Costume Designs56 Fed. Reg. 56,530, 56,532 (1991).  For example, fanciful renditions of a “Tigress” and “Magic Dragon” costume with unique color combinations, arbitrary placement of physical features, and sculptured headpieces were held to be copyrightable because the artistic components were conceptually separable.  National Theme Productions, Inc. v. Beck, 696 F. Supp. 1348 (S.D. Cal. 1988).

Fabric designs, in contrast to costumes, are easier to copyright. In L.A. Printex Industries, Inc., v. Aeropostale, Inc., the court held that while the mere idea of a particular floral configuration was not protected under copyright law, the original selection, coordination, and arrangement of the bouquets and branches in the fabric was protectable. 676 F.3d 841, 849 (9th Cir. Cal. 2012).

Similarly, the Second Circuit has noted the distinction between clothing and fabric designs.  Clothes are “useful articles…having intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information” under 17 U.S.C. § 101.  Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. N.Y. 1995).  On the other hand, a particular configuration of multicolored stripes and puffy appliqués on a sweater, are “considered ‘writings’ for the purposes of copyright law and are accordingly protectable.  Id., see also Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 762 (2d Cir. N.Y. 1991)(fabric designs are protected ‘writings’ under U.S. Constitution art. I, §8, which authorizes Congress to confer limited monopolies to authors and inventors for their original “writings and discoveries.”) 

Though the artistic merit of the bizarre carpet itself has been questioned, the gold, blue, and red segmented circles are arranged and coordinated into an original configuration, and the 2nd Circuit would consider the design a “writing.”  The carpet design would likely be afforded copyright protection based upon Courtisan Inc.’s unique pattern.  Unfortunately that means that creating and selling a replication of this carpet through an online fabric store is probably copyright infringement.

Interestingly, the cosplay of the carpet itself—as distinguished from the sale of the fabric itself–would most likely satisfy fair use requirements and be classified as a parody.  The cosplayers are clearly imitating the carpet for comic effect.  For legal purposes, a “parody” is “a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.”  Campbell v. Acuff Rose Music, Inc., 10 U.S. 569, 578 (1994).  Fair use is one of copyright law’s “built-in First Amendment accommodations” allowing the public to, “use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes.” Eldred v. Ashcroft, 537 U.S. 186, 190 (2003).  This “First Amendment accommodation” provides the public “considerable latitude” for commentary and parodies.  Id. In this case, the cosplayers themselves, camouflaged against the carpet, bring a comic element that would be absent in the fabric by itself. As such, if the cosplayers were sent a cease and desist notice merely for posting pictures of themselves in the carpet costumes on their social media accounts, they would have a strong defense. This, however, is not what happened in this case.

If this area of law seems tricky and involved that is because it is.  Assuming that a particular costume design has artistic elements capable of being protected, a  cosplay which does not critique or comment on a copyrighted work for comic purposes would have to satisfy the traditional fair use requirements.  Readers curious about whether a particular cosplayer who dresses as a character other than for “comic effect or ridicule” are encouraged to read Nerds in Court co-founder Christina Evola’s ASCAP award winning article “The Next Generation of Costumes and Conventions: Is Cosplay Copyright Infringement? (click here to download for free).  There, after discussing the historical background of cosplay, she illustrates the likelihood of whether a fictional Princess Leia cosplayer would be held liable for copyright infringement.  She first provides a copyright infringement analysis, followed by a fair use assessment.

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About Nerds in Court

John G. Nowakowski, Esq. (LLMT), is a graduate of the University of San Diego School of Law, and is licensed to practice law in California and Nevada. Christina R. Evola, Esq. is a recent graduate of the University of San Diego School of Law where her studies focused on intellectual property, antitrust, and media law. She is a lifelong gamer and avid cosplayer. DISCLAIMER: ‘Nerds in Court’ is for entertainment purposes only. Nothing should be construed as legal advice, or any advice for that matter, and no attorney-client relationship is formed by reading these posts. Do not consider information provided here as a substitute for obtaining legal advice from a qualified, licensed attorney in your state.

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