Cosplay is a performance art in which participants wear, and often create, costumes representing characters from comic books, cartoons, games, television shows, movies or other media. The word “cosplay” is a contraction of the words “costume play.” A clarification of copyright law could potentially create obstacles to cosplay, depending on an upcoming decision of the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc. et al.
Background
Original two-dimensional graphic or pictorial designs are protectable by copyright, whether they appear on an artist’s canvas, a canvas bag, or a canvas shirt. However, when the shape or design of an article is dictated by or responsive to the utilitarian function of the article, the shape or design cannot be protected by copyright. Various courts around the country have adopted different tests to determine whether a design on a useful article, such as a pattern on an article of clothing, is a protectable design separable from the useful article, or whether the design is inseparable from the useful article and therefore unprotectable.
Varsity Brands, Inc. and several related companies (collectively, Varsity) have registered copyrights for multiple graphic designs that appear on cheerleading uniforms and warm-up outfits that they sell. Star Athletica, L.L.C. (Star) also sells cheerleading apparel displaying designs that, according to Varsity, are substantially similar to Varsity’s copyright-protected designs. Star asserted in its defense that designs at issue were for utilitarian “useful articles” which are not protectable by copyright. Star further asserted that the copied elements, i.e., the pattern of stripes and chevrons, were not physically or conceptually separable from the uniforms.
The district court initially hearing the case decided in favor of Star, concluding that Varsity’s designs were not separable from the uniform because the “colors, stripes, chevrons, and similar designs typically associated with sports in general, and cheerleading in particular” make the garment they appear on “recognizable as a cheerleading uniform.” On appeal, the Sixth Circuit vacated the judgment of the district court, determining that the arrangement of stripes, chevrons, color blocks and zigzags are wholly unnecessary to the performance of the garment’s ability to cover the body, permit free movement and wick moisture. The graphic features could be identified separately from, and could exist independently of, the utilitarian aspects of the cheerleading uniforms, and were thus protectable by copyright.
The Supreme Court granted certiorari to review the following question: “what is the appropriate test to determine when a feature of the design of a useful article is protectable under §101 of the Copyright Act?” The Court heard oral arguments in this case on Oct. 31, 2016. The Court is expected to issue a ruling in 2017 clarifying the treatment of designs on clothing under the Copyright Act.
How Does This Apply to Cosplay?
Copyright law protects creative expression and original works of authorship. Luke Skywalker wears simple outfits in the original trilogy of Star Wars® movies, but the character is well developed with a detailed backstory, imbuing Luke Skywalker with a great deal of expression. As such, Luke Skywalker and the appearance of Luke Skywalker would be readily protectable by copyright law. On the other hand, a nameless member of the Imperial Navy is a stock character mandated by the genre and has little creative expression or protectable content, other than possibly his or her appearance as a member of the Imperial Navy.
A ruling favoring Varsity Brands could significantly increase the legal risk of participation in certain types cosplay. The court’s ruling in this case would be particularly relevant to cosplayers using military-type outfits, or other outfits with patterns of colors, stripes, chevrons and the like, to represent members of an organization and not specific individuals (i.e., a generic Rebel Alliance pilot, not Wedge Antilles or Biggs Darklighter). In such cases, claims of copyright infringement raised by a copyright owner would be based primarily on use of the owner’s designs on cosplay apparel, not on appropriation of a specific character.
If the Supreme Court finds the design on a cheerleading uniform to be protectable by copyright, other courts could consider Star Fleet uniforms from the Star Trek® television shows, Imperial Navy uniforms from the Star Wars® movies or the Royal Manticorian Navy uniforms from the Honor Harrington book series to be protectable as well. Such a ruling would strengthen the position of copyright owners and validate copyright registrations for designs embodied in apparel. Content creators, such as comic artists, movie studios, clothing designers, and others, may increasingly seek to register copyright in their apparel and enforce those registered copyrights.
This ruling would likely have little effect on cosplayers creating and wearing significantly more ornate outfits, such as princess-style outfits including multiple layers of clothes and multiple non-functional accessories. Such ornate and detailed cosplay outfits incorporate more creative expression than simple uniforms, and are unlikely to be considered potentially “useful articles” equivalent to the cheerleader uniforms under consideration in the Star Athletica case. Such ornate outfits would likely be considered protectable by copyright regardless of the court’s decision.
One common misconception is that non-profit, non-commercial use of another’s copyright-protected content will not subject the user to liability. While copyright owners may be more likely to pursue entities who are profiting off the owners’ content, they are not barred from bringing legal action against individuals participating in cosplay for their own enjoyment. An infringer of a registered copyright may be liable for statutory damages, which are not directly tied to the economic harm caused by the infringement. Statutory damages may reach $30,000 per act of infringement or up to $150,000 per act, if the infringement is considered willful. While the “Fair Use” exception may serve as a defense against claims of copyright infringement in certain circumstances, the exact boundaries of what constitutes “Fair Use” are not clearly defined. As may be expected, disputes can arise when copyright owners take a more narrow view of the Fair Use exception than those seeking to use copyright-protected content.
Cosplayers and individuals with an interest in creating and wearing apparel designed by others should keep an eye out for the Supreme Court’s decision in Star Athletica, L.L.C., expected in 2017. A ruling favoring Varsity Brands would clarify and reinforce the validity of copyrights in artwork incorporated into apparel, and could encourage copyright owners to register and enforce their rights. Alternatively, a ruling favoring Star Athletica could clarify individuals’ freedom to participate in certain forms of cosplay.
If you have any questions regarding these or other copyright matters, please contact Brian W. Chellgren or another copyright attorney at Bingham Greenebaum Doll LLP.
To learn more about Brian W. Chellgren and his practice, please visit his profile.
- Partner
Brian is an attorney in the firm's Lexington office, a member of the firm's Business Services Department, and Chair of the Intellectual Property Practice Group. A registered patent attorney with degrees in molecular biology (B.S ...

Subscribe
Recent Posts
- What is the Difference Between Venture Capital, Private Equity?
- Recapping the 2018 BGD Legislative Conference
- Municipal Utility Sale Affirmed with Valuable Practice Pointers Learned
- Judge Finds Accepting HUD Subsidy Does Not Stop Eviction Process
- Court Finds No Violation of Public Policy Where Challenge to Trust Causes Minors to Forfeit Inheritance
- Trust Grantor Fails to Exercise His Retained Power Properly
- Five Reasons Why Everyone Needs an Estate Plan
- Indiana Supreme Court Rules, in a Matter of First Impression, “Blocked-Crossing” Statute Preempted under Federal Law
- More Lessons Learned from the Theranos Debacle
- Municipal Utilities Need to Be Smart When Implementing a Smart Meter Program
Categories
Contributors
- David A. Adams
- John W. Ames
- Jason T. Ams
- Kelly D. Bartley
- Brent R. Baughman
- Kate E. Beatty
- Jeffrey T. Bennett
- Keith A. Bice
- Blaine R. Blood
- Jenny E. Bobbitt
- Daniel L. Boots
- Melissa Norman Bork
- Claude R. Chip Bowles Jr.
- Andy Bowman
- Richard Boydston
- Janeia L. Brounson
- Ian J. Busche
- Brian W. Chellgren, Ph.D.
- Anne A. Chesnut
- Margaret Christensen
- Grantland M. Clapacs
- Briana Clark
- Ross D. Cohen
- Jared A. Cox
- Bruce E. Cryder
- John R. Cummins
- Alan J. Dansker
- Morgan A. Davenport
- D. Rusty Denton
- Brenda K. DeVries
- Ivan M. Diamond
- Rosmond J. Dolen
- Trisha S. Dudlo
- Greg J. Duncan
- Mary G. Eaves
- Philip C. Eschels
- Benjamin J. Evans
- Gregory J. Ewing AICP
- Daniel E. Fisher
- K. Michael Gaerte
- Jeremy P. Gerch
- Carmin D. Grandinetti
- Peter H. Grills
- Andrew Gruber
- J. Mark Grundy
- Alex Gude
- Justin Hage
- Meaghan Klem Haller
- Brad Hasler
- Jeremy Hill
- James M. Hinshaw
- James R. Irving
- Dwayne Isaacs
- Phil L. Isenbarger
- Eric L. Ison
- Benjamin M. Jakubowicz
- Janet P. Jakubowicz
- Christopher W.D. Jones
- Justin W. Jones
- William J. Kaiser Jr.
- Larry Kane
- Margaret E. Keane
- Jan Keefer
- J. Richard Kiefer
- June N. King
- Michael Kohlhaas
- Grant Krevda
- R. Clay Larkin
- Charles J. Lavelle
- Scott Leisz
- Benjamin J. Lewis
- Mark A. Loyd
- John S. Lueken
- Peggy B. Lyndrup
- Brad R. Maurer
- John McCauley, CIPP (US)
- Tobin McClamroch
- Michael J. McGee
- David T. McGimpsey
- Kevin P. McGoff
- V. Brandon McGrath
- Jeffrey A. McKenzie
- Holland N. McTyeire V
- Michael A. Mercurio
- Eric J. Metzger
- Brett J. Miller
- Kyle W. Miller
- Melissa Buckley Minix
- Ali Bartlett Miranda
- Mark Molter
- Christie A. Moore
- Whitney Mosby
- Karl Mulvaney
- R. Matthew Neff
- Gregory A. Neibarger
- Lauren R. Nichols
- Kimberly J. O'Donnell
- Mark H. Oppenheimer
- Tandy C. Patrick
- Andrew M. Pendexter
- Julianna M. Plawecki
- Matthew Price
- Nana Quay-Smith
- James Reed
- Kyle T. Resetarits
- Bailey Roese
- Rene R. Savarise
- Thomas C. Scherer
- Phillip D. Scott
- Randolph Seger
- Philip Sicuso
- Leslie M. Smith
- Mary E. Solada
- Hans Steck
- Kenji Tashiro
- Jennifer Kahney Thompson
- Peter L. Thurman Jr.
- David O. Tittle
- Matthew Troyer
- Job D. (Darby) Turner
- Tonya Vachirasomboon
- Christopher Van Bever
- D. Bryan Weese
- Brian W. Welch
- Patrick J. Welsh
- Shannon L. Williams
- Steven R. Wilson
- April A. Wimberg
- W. Plumer Wiseman Jr.
Archives
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010
- September 2010
- August 2010
- July 2010
- June 2010
- May 2010
- April 2010
- March 2010
- February 2010
- January 2010
- December 2009
- November 2009
- October 2009
- September 2009
- August 2009
- July 2009
- June 2009
- May 2009
- April 2009
- March 2009
- February 2009
- January 2009
- December 2008
- November 2008
- October 2008
- September 2008
- August 2008
- July 2008
- June 2008
- May 2008
- April 2008
- March 2008
- February 2008
- January 2008
- December 2007
- November 2007
- October 2007
- September 2007
- August 2007
- July 2007
- June 2007
- May 2007
- April 2007
- March 2007
- February 2007
- January 2007
- December 2006
- November 2006
- October 2006
- September 2006
- August 2006
- July 2006
- June 2006
- May 2006
- April 2006
- March 2006
- February 2006
- August 2005
- June 2005