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:
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.