Cosplay again


#1

So i asked a question about the morality of cosplay the other day. I’ve tried really hard to do research on copyright laws and the likes and I want to re-ask.

I have read that USA law explicitly states that clothing cannot be copyrighted. I read about a case where a Joker costume was being sold commercially without a license, and I read that the clothing portion of the costume was considered utilitarian and not subject to copyright, although the mask portion of the costume was sculptural and could be considered a violation.

This particular costume is in 2 pieces, the outfit and the helmet. I’m making the outfit. Based on what I have been able to find out, what I am sewing is in the clear no matter what because clothing cannot be copyrighted (I think??? It seems like it, but it also looks like some people disagree on the basis of the intended image itself). Somebody else is making the helmet. I highly doubt the utilitarian clause can apply to the helmet since obviously it’s not a real helmet, and therefore I really don’t know if it would be considered copyright violation. There are a couple of factors that might make it legal, but I can’t say for sure because it’s all so vague and confusing. If it is, doesn’t this mean I could be an accomplice to another’s sin? Even if my contribution is perfectly legal, I’m helping create a look that could be overall a violation.

I can’t seem to find any clear information about how copyright applies to personal use and I think it’s because nobody really knows. It all depends on a lot of factors. This concept is causing me a lot of anxiety, way more than I ever thought it would, because I can’t get a clear answer and I really have no clue where to go.

I’m really, really stressing out about this because I already agreed to do it, we’ve discussed prices (I’m not going to charge for my work, I definitely don’t feel right doing that, but material costs ect), we’ve discussed designs. Every day that I go without making a decision on this issue, I keep getting deeper into it. I mean, I’m already well into the planning phase of working on this thing and the last thing I want to do is suddenly say to them “Well I can’t figure out if it’s a violation of copyright or now so I’m going to play it safe and scrap everything”. At the same time, even if it sounds ridiculous (does it sound ridiculous?? I don’t know??) I can’t get it out of my head. Every time I sit down to work on it, all these questions that seem to have a dozen answers apiece start running through my head. Every time I decide that I’m doing nothing wrong, the "what if"s appear and I start thinking of every situation in which it could be wrong. I don’t know how it got to be this bad but I literally can’t even pray without this dilemma interrupting and taking up all my attention.

I read this page from the US Copyright Office:
copyright.gov/fls/fl102.html
Listing the four factors which are considered in determining “fair use” and then basically saying “If you’re not sure, don’t do it”. Am I sure? I’m sure that I won’t be brought to court regardless, I know that. Am I sure it’s Fair Use, though? Well…regarding the fourth factor, one could say it’s almost certainly Fair Use since I don’t think the company holding the copyright sells costumes (I don’t think so, but I guess they might) and one homemade costume will not impact the market anyways. Regarding the first factor: it may not be social commentary or education, which puts a dent in it, but it’s also not commercial or for profit, which helps. Regarding the second factor, the fact that it’s clothing counts for my bit, but not for the costume that I’m helping create as a whole. Regarding the third factor, I would think that an argument can certainly be made, since the garment that I’m creating is pretty much an original design and the only mostly-copied bits are the accessories…but the accessories will (probably, i don’t know that plans, but I assume that they will) be very close replicas so looking specifically at parts of the outfit, yeah, it doesn’t look quite so good.
So am I confident it’s fair use? Looking just at these factors, maybe. A good case can be made. But am I certain enough to satisfy my conscience? No.

I cannot win. If I go through with it, I’ll feel anxious about the morality. If I back out of it, I’ll feel anxious about totally flip-flopping on a friend for no clearly apparent reason. I keep flipflopping in my head, too. One moment it seems obviously ethical. The next moment it feels like clear mortal sin. I don’t know where to stand and I feel stuck. I’ve felt stuck about ethical issues a lot, but never before to this degree. This is probably the most two-sided, confusing, and most thoroughly lose-lose decision I’ve had to make during my time as a Catholic and no matter what, I’m going to stress out about it for ages after it’s over. I don’t know what to do.


#2

You’re fine, stop worrying.

You’re not making money off of it, so you’re good. I am not aware of a single instance of cosplayers being accused of violating the law or prosecuted as such. I’m on a number of sites where that would be big news, so if it had happened it would have been reported on. Cosplay is fun and, so long as you’re not being immodest, morally neutral. If you were selling costumes that might be another issue, but you’re making one with your friend to go have fun at a convention.

Those laws are intended to prevent people from making money off of other people’s work, not to prevent people from dressing up as characters. Relax and enjoy yourself, get into character and look awesome!

A small question, what are you dressing up as? It sounds like you’re doing a stormtrooper or something like that from what I read here. Back when my hair was really long I wanted to cosplay as Alucard from Hellsing :stuck_out_tongue:


#3

Hi Butaperson,

The copyright laws only apply when you’re making money off of it. Just making a costume to wear it is fine. Otherwise there would be a lot of legal cases after Halloween! :smiley:

I am a little concerned that you might suffer from scrupulosity. Please consider talking with a priest about this and see what he would suggest. In any case - just something to consider.

Hope that helps!


#4

I can understand you doing the research if you think you’ll get into this type of thing as a regular thing and as a business. That is, assisting folks without the skills to make costumes for personal use. I think it would be something you’d need to know if you were to make one type of costume and market them as being a copyrighted character, but not making articles on an as needed basis.

There is nothing illegal or immoral about making a costume for yourself for say- a Halloween party, or to go to Comic-Con. Folks do it all the time and there are certainly representatives from the various companies who hold the trademarks/copyrights at the shows. It does get into intent-- the cosplay folks aren’t representing themselves as officially endorsed or associated with the companies, they don’t charge for photos if people take them, they aren’t making money.

So you and the other person assisting this person in assembling a costume aren’t doing anything immoral. I would say even being compensated a reasonable amount for your labor would be moral, ethical and legal. But I’m not a lawyer.


#5

I haven’t studied the law on this, but I think the law that pertains is not copyright, but trademark. Certain designs might be trademarks, for example, the specific costumes or masks of Batman and the Joker. There are limits on the applicability (and enforcement) of trademarks. If the mark is used in a completely different market sector, where there is no possibility that the consumer will be confused about what he/she is purchasing, and there is no adverse impact on the economic value of the trademark to its holder, there may be no violation.

For example, if you open a hamburger shop called McDonald’s, there would be confusion. If you opened a doctor’s office with a sign that looked like the McDonald’s Golden Arches, there would be confusion. On the other hand, if you put on a play about an encounter at McDonald’s, most likely no one would mistake it as a McDonald’s advertisement or any other service provided or authorized by McDonald’s, and I think you would be legally safe.

Similarly, if you design costumes based on trademarks, and use them in an original play, there is little chance of consumer confusion, and no adverse economic impact on the trademark owner, so again I think you would be legally safe.


#6

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