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Yes, you read that right: the Supreme Court of the United States may get to decide the legal status of all those Jedi robes you’ve got squirreled away. The Supreme Court is considering a case that will set the standard for when clothing and costume designs can be covered by copyright—and when people who mimic them (such as costumers) can be sued for potentially enormous damages.
The parties to the case, Star Athletica and Varsity Brands, both design cheerleading uniforms. Varsity claims that major portions of their designs are entitled to copyright protection, while Star Athletica points out (and is backed up by a long line of caselaw) that clothing designs are explicitly exempted from copyright. Their arguments rest on different interpretations of a legal concept known as “separability”—a topic so abstract and murky that even seasoned copyright lawyers avoid it.
To understand the case and its impact, you need to keep in mind two things. First, copyright protects creative works. It does not protect what it calls “useful articles,” or items which are designed purely for utility. Copyright protects a statue; it does not protect the chisel.
So, when you have an object that is both functional and creative, things start to get fuzzy. It’s pretty obvious that this…
Spoiler:
…is about as useful as it gets. It’s a no-frills lamp; there’s a bulb, a socket, and light comes out of it. This lamp is designed solely to generate light. But twist the bulbs around, give it a bit of flair...
Spoiler:
… and suddenly it’s not so clear where the functionality ends and the art begins. Take it several steps farther….
Spoiler:
and you can see where form becomes more important than function.
If you think all of this sounds more like philosophy than law, you’re not alone. Courts have floated no fewer than nine separate theories about how to best separate creative from non-creative aspects of a work, and the Sixth Circuit Court of Appeals recently added to the confusion by creating a tenth.
And separability really goes sideways when we start applying it to articles of clothing, which courts (and Congress) have long treated as useful (i.e. functional) articles. “Fast-fashion” retailers rely on their ability to copy, alter, and mimic hot designs. Major outlets such as Gap, Forever 21, and H&M are literally dependent on their ability to design clothes that evoke runway trends, without having to pay exorbitant licensing fees to the original couture designers.
All of which brings us back to cosplay. If the Supreme Court decides on a test that gives a lot of leeway for “original” designers to sue others for infringing on the “look” of their clothing, costumers are left right in the crosshairs. And copyright damages can be positively massive, running up thousands of dollars per infringement. Public Knowledge will be filing in support of Star Athletica’s petition before the Supreme Court, highlighting the scope of hobbyists and consumers that the ruling could impact.
Cosplayers are going to feel the brunt of this decision, one way or the other. The Supreme Court is quite literally deciding the test by which the legal status of cosplay will be judged. If the cut, color, and pattern of an outfit can be copyrighted, then cosplayers may very well find themselves on the wrong end of the law simply for doing what they love.
This message was edited 1 time. Last update was at 2016/01/22 09:19:10
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Hmm... seems interesting. While I know there are a number of competitions, aren't there a number of companies that employ cosplayers for various Cons? How many of those booths are actually controlled by a larger entity (ie, how much control does "Star Wars" have over a FFG table?)
Where would the line then be, if a competition is sponsored by one entity would they then have to limit entrants to costumes covered by the sponsors copyrights?
So one cheerleading company says another cheerleading company is stealing their designs? I wouldn't think a skirt and shirt would leave much to copyright.
Strange how it could be applied to Cosplay though. I guess if you buy one company's article of clothing to incorporate into your costume, they could sue you for not paying them a royalty if you end up making money for it?
Freedom of speech? Is that not a thing in the 21st century?
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Sinful Hero wrote: So one cheerleading company says another cheerleading company is stealing their designs? I wouldn't think a skirt and shirt would leave much to copyright.
Strange how it could be applied to Cosplay though. I guess if you buy one company's article of clothing to incorporate into your costume, they could sue you for not paying them a royalty if you end up making money for it?
My guess would be that the "offending" cheerleading company is "stealing" color/stripe patterns or some such. Without my hunting down both companies to look at the offending articles, I get the impression that it'd be like Nike making jackets or pants that have a trio of stripes down the sleeves/legs, considering the three equal sized stripes is kind of Adidas' "thing" and all.
Personally I think there is too much copyright about these days. It lasts too long and too many companies are trying to extend it so they can control things that really ought to be available for general use. How can someone think they can copyright a particular set of colours or stripes, etc? Next thing you know, people will be copyrighting words.
The poor man really has a stake in the country. The rich man hasn't; he can go away to New Guinea in a yacht. The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all
We love our superheroes because they refuse to give up on us. We can analyze them out of existence, kill them, ban them, mock them, and still they return, patiently reminding us of who we are and what we wish we could be.
"the play's the thing wherein I'll catch the conscience of the king,
Kilkrazy wrote: Personally I think there is too much copyright about these days. It lasts too long and too many companies are trying to extend it so they can control things that really ought to be available for general use. How can someone think they can copyright a particular set of colours or stripes, etc? Next thing you know, people will be copyrighting words.
Kilkrazy wrote: Personally I think there is too much copyright about these days. It lasts too long and too many companies are trying to extend it so they can control things that really ought to be available for general use. How can someone think they can copyright a particular set of colours or stripes, etc? Next thing you know, people will be copyrighting words.
Speaking of extended copyrights...
I'm going to save this for the next time someone wants to complain about 'originality'
So the gist of this is that people shouldn't be allowed to dress up as fictitious characters because copyright infringement?
Just to throw this out there and watch the rage, but if its ok for someone to lie and say they were in the military and then run around wearing a military uniform, but god help you if you dress up as a Space Marine because GW will sue your pants off? Im sorry but wtf?
Dressing up as a soldier isn't illegal, nor is dressing up as a cop, doctor, et al. Lying about it on the other hand probably is, fraud and all. One will never confuse an anime character costume as more than that but there are actual soldiers so I don't think the comparison is all that apt.
Amidst the mists and coldest frosts he thrusts his fists against the posts and still insists he sees the ghosts.
Just to throw this out there and watch the rage, but if its ok for someone to lie and say they were in the military and then run around wearing a military uniform, but god help you if you dress up as a Space Marine because GW will sue your pants off? Im sorry but wtf?
That does raise an interesting, if tangential, point. Could the US military sue for damages if its uniform is used without permission?
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Just to throw this out there and watch the rage, but if its ok for someone to lie and say they were in the military and then run around wearing a military uniform, but god help you if you dress up as a Space Marine because GW will sue your pants off? Im sorry but wtf?
That does raise an interesting, if tangential, point. Could the US military sue for damages if its uniform is used without permission?
IF this goes through maybe.
But I would bet that this would not affect cosplay in anyform TBH.
Just to throw this out there and watch the rage, but if its ok for someone to lie and say they were in the military and then run around wearing a military uniform, but god help you if you dress up as a Space Marine because GW will sue your pants off? Im sorry but wtf?
That does raise an interesting, if tangential, point. Could the US military sue for damages if its uniform is used without permission?
It actually is a criminal offence to dress up in military uniform in the USA. This is not due to copyright.
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