Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.
Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.
Fan culture, or “fandom”, is a term used to describe a community of fans built around a shared enjoyment of a particular piece of pop culture. Members of fandoms often participate in various creative activities inspired by their source material, including dressing up as the characters, writing stories based in the fictional universe, and making drawings about the original work.
While most creators support fandoms, with some even regularly appearing at fan conventions, the line between appreciating a creator’s work and copying can be blurred. What may seem like a harmless activity in the spirit of fandom can at times give rise to copyright infringement.
Cosplay (or “costume play”) is the act of dressing up as a character, often from anime, video games, comics, television, or film. Though the term dates back to the 1980s, the practice has existed for centuries. It is often associated with comic or pop culture conventions, where fans attend in the masses, taking on characters from popular franchises such as Doctor Who, Star Wars, and Marvel movies to the animated universes of Pokémon, Naruto, Final Fantasy, and beyond.
This year, Japan made headlines by proposing a new law that could potentially create copyright infringement problems for cosplayers. In Japan, cosplay can be a fruitful endeavour, with successful professional cosplayers earning upwards of $90,000 a month from public appearances, merchandise, photo books, and more. Japan’s proposed new law would require professional cosplayers to pay a fee to the creators of the characters they cosplay in specific circumstances (for example, when appearing as a character for an event or on television).
Luckily for most cosplayers, their costumes likely do not infringe copyright laws. In both the United States and Canada, costumes do not fall under copyright protection given their classification as “useful articles.” Although there are complexities—for example, exceptions preventing the reproduction of trademarks on useful articles and masks and jewelry potentially being subject to copyright—replicating costumes, for the most part, is a liability-free activity. Even if copyright subsists in some features of the costume, reproducing these elements for personal, non-commercial purposes is permissible in both Canada and the United States.
Fanfiction and Fanart
Fanfiction and fanart are other popular forms of fan expression. As the name suggests, fanfiction and fanart are content by fans based on existing works of fiction.
Though fanfiction and fanart have arguably been around as long as fiction, with authors and artists drawing inspiration from one another, the modern conception of the activities as expressions of fandom arose in the 1960s via Trekkies (fans of Star Trek).
Unfortunately, laws around fanfiction and fanart are not clear. In the United States, copyright holders have the sole right to prepare derivative works, including major copyrightable elements of an original, previously created work. Canada lacks an analogous provision but does have other provisions under section 3(1) of the Copyright Act that offers rights holders similar protection, such as the sole right to publish any translation of the work or convert the work into other forms. However, users’ rights provisions (fair use in the United States and fair dealing in Canada) may provide a legal basis for fan creations to exist. A fairness assessment may consider relevant factors like commercialization, amount and substantiality of the copied work, and how “transformative” the fan-made work is. Fans may not even have to avail to fairness assessments by arguing that their fan creations are sufficiently original. As it is well-established that authors do not have copyright protection in facts and ideas, including fictional or creative facts, fans may argue that their works contain only the underlying, non-copyrightable elements from the source material.
While the law surrounding fanfiction and fanart is still grey, authors’ views on the subject are divided. Some authors, most notably the late Anne Rice and George R. R. Martin, strongly oppose fanfiction, believing it to be copyright infringement. The majority, however, see fan-made content as a form of flattery, and essentially, free advertising for the original work. The author of the famed Twilight series, Stephenie Meyer, was known for publishing links to fansites and supported Fifty Shades of Grey, which originated as a Twilight fanfic.
Despite the legal uncertainty, fanfiction and fanart continue to rise. The ubiquity of fanfiction and fanart combined with high litigation costs may deter the small minority of authors and publishers who dislike the practice from launching lawsuits. After all, suing your fans isn’t the best way to earn their support.
I would be extremely interested and grateful to read any information you could provide regarding photographing cosplayers. I know it is an extremely fine line, legally speaking, to charge fees for photography sessions involving someone dressed as a trademarked character. It is my understanding that if one does not advertise for people to appear in costume to be photographed, or use a character to promote certain types of sessions, that the legal line is not crossed. For example, someone books a regular photo session with me and requests a “downtown rooftop” location. When the client arrives for the session, they are dressed as Batman. I did not require them to bring the costume, nor did I advertise “Rooftop Batman Sessions for $xxx”. I photograph the client in the clothing in which they arrived and produce the digital files and prints they paid for, just as I would any other client.
How fine of a legal line is this practice? As a photographer, I have done several cosplay shoots, but to date I have not accepted money for them as I’m wary of the legal ramifications.
Any input you could provide would be greatly appreciated.