Term Paper: Fair Use and Intellectual Property Rights at Cosplay

Pages: 7 (2178 words)  ·  Bibliography Sources: 4  ·  Level: Master's  ·  Topic: Law  ·  Buy This Paper

SAMPLE EXCERPT:

[. . .] As has been ruled in Harper & Row Publishing v. Nation Enterprises, Cosplay may be in murky territory when it comes to identifying whether it is not-for-profit or for-profit—but that is really beside the point: “the crux of the profit/non-profit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price” (Madonia, 2016, p. 183). If a cosplayer is using a character’s likeness in a way that is not incidental to the attainment of profit, then the creator or copyright holder of that likeness is legally bound to a portion of those earnings. If the likeness is, on the other hand, incidental to the profit of an individual—which may be the case in the event of a celebrating appearing at Cosplay through a promotion for which he or she is paid, while dressing as a character from a TV series, film, comic book, etc.

Moreover, the professional cosplayer brings his or her own imaginative skills to the development of the costume that is used at Cosplay. As Madonia (2016) points out, “the transformative nature of building a costume weighs in favor of fair use” (p. 184). This is so because the “professional cosplayer must reimagine and then create from scratch all the pieces of the costume and the accessories, many of which are made of fantasy materials on the original character” (Madonia, 2016, p. 184). As a result, the cosplayer essentially is bringing a new element of design, and a new approach to a concept and making it unique. Because the environment in which this action is also performed is one that is specifically suited for tailor-made fan-based celebrations of pop culture characters, the “fair use” clause carries particular weight, as Bill Graham Archives v. Dorling Kindersley, Ltd. showed (Madonia, 2016). Reproducing copyrighted images without permission of the copyright holder was ruled as permissible under the “fair use” clause so long as purpose and character of the usage of the copyrighted material is transformative. In other words, if the user transforms the material in any way so as to make it unique, the copyright protection afforded the material does not necessarily apply. This certainly fits the nature of Cosplay. Thus, it may be said that cosplayers who engage in the transformative use of copyrighted characters may find protection from prosecution under “fair use” law.

Conclusion

Cosplay is a unique phenomenon and environment in which fans of popular characters in various media merge to promote and celebrate the works of art and entertainment that they most enjoy. Fans commonly dress in costumes depicting popular characters from games, movies and animations. Because characters can be copyrighted under intellectual property laws, the legality of Cosplay has been questioned by some. However, as this paper has shown, the “fair use” clause broadly covers much of the activity associated with character usage in Cosplay. Where legality issues might most intensely come up is in the question of for-profit activities in which cosplayers exploit a character’s likeness for profit without paying licensing fees to the copyright holder. In cases where transformative use is applied by the cosplayer, the question of infringement has been shown, in various court cases, to be a matter that is null and void. Cosplayers commonly adapt characters, designs, and features in such a way and for such a purpose that “fair use” will protect them.

References

Madonia, M. R. (2016). All’s fair in copyright and costumes: Fair use defense to

copyright infringement in Cosplay. Marquette Intellectual Property Law Review, 20(1), 177-193.

Schreyer, A. (2015). An overview of legal protection for fictional characters: Balancing

public and private interests. Cybaris, 6(1), 50-95.

Williams, H. (2016). Is it legal to Cosplay? Retrieved from

https://www.kotaku.com.au/2016/02/750589/

Woods, M. & Monroig, M. (2015). Fashion design and copyright in the US and EU.

Geneva: World Intellectual Property Organization. [END OF PREVIEW]

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Fair Use and Intellectual Property Rights at Cosplay.  (2018, January 18).  Retrieved September 15, 2019, from https://www.essaytown.com/subjects/paper/fair-use-intellectual-property-rights/6677805

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"Fair Use and Intellectual Property Rights at Cosplay."  18 January 2018.  Web.  15 September 2019. <https://www.essaytown.com/subjects/paper/fair-use-intellectual-property-rights/6677805>.

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"Fair Use and Intellectual Property Rights at Cosplay."  Essaytown.com.  January 18, 2018.  Accessed September 15, 2019.
https://www.essaytown.com/subjects/paper/fair-use-intellectual-property-rights/6677805.