I’m not a braggy person, but I recently got the best compliment ever and I had to share it. A reader named Susanna wrote to me on Linkedin saying that, “I’m a huge fan of your blog. It’s more or less the only thing I read on here regularly.” She also asked a legal question. Now I presume that Susanna’s compliment was genuine, but even if it was designed to manipulate me into responding, well all I can say is Bravo! She found my weakness. Let this be a lesson to you all; if you want something from me, flattery will get you everywhere.
Susanna’s question was about whether a business that specializes in creating cosplay costumes is liable for damages under the Copyright Act.
First thing's first: dressing up as Batman isn’t going to get you sued for copyright infringement. The essence of copyright infringement is whether your use of someone else’s intellectual property is financially harmful to that person; whether you're taking money out of their pockets. But if your use is non-commercial, or it comments on/criticizes the original work, or is used to educate others, then it's not copyright infringement. So if you’re an individual wearing a Batman costume to San Diego Comic-Con, rest assured. You're probably in the clear.
If, on the other hand, you’re a business who specializes in making these costumes and you haven't licensed the rights to do that from the owners, you're going to get found, you're going to get sued, and you're going to lose. Why? For the reasons I just mentioned! Money! The cosplayer’s best defense is that he or she is doing it for themselves, as a means of self-expression and devotion to the character. The business has no such defense. There's a reason you've never seen unlicensed Batman merch in a costume shop... even if the costumer could get away with it, why risk being put out of business? DC Comics has deeper pockets than you and can just litigate you to death.
So if you want to get into the business of creating professional costumes for cosplayers, licensing the rights to the designs is the smart move. Hands down.
Surprisingly though, the law isn't as clear on this as you might think. For one thing, while the DESIGN of a costume (and all subsequent derivative designs) may be protected by copyright, the PHYSICAL costume itself is not because copyright law does not protect physical objects. This means that theoretically, the physical production of a Batman costume could be different enough from the design to skirt around copyright law.
There's another wrinkle too. When it comes to clothing, certain aspects of design, like sleeve styles, pockets, and necklines, don’t fall under copyright law because they are considered inseparable from the function of the outfit. In fact, the laws surrounding clothes is so patchwork and confusing right now that the Supreme Court is actually going to hear a case about it.
Maybe you heard about the Cheerleader Outfit case? Varsity Brand sued Star Athletica over similar uniform designs (seen below). Varsity Brand argued that the stripes, chevrons, zigzags, and color blocks in the outfits are not functional aspects of the uniform, they are design elements worthy of copyright protection. Star Athletica is arguing the opposite - that these various design elements are fundamental to the nature of cheerleading outfits (i.e. they signal to the world that the wearer is a cheerleader) and are not copyrightable. It’s a really big question that's difficult to answer: where does function end and design begin? But it’s exactly the question the Supreme Court is going to have to answer.
There's some concern that if the court rules in favor of Varsity Brand, it could create a scenario where owners of popular fictional characters could sue individual cosplayers merely for dressing up. But I don't think that's likely to happen. It would create too great a penalty for too small a harm and the courts have shown little incentive to make a ruling that would create so much collateral damage. So while the Supreme Court may allow individuals to use the protected works of others without penalty, it's not going to permit small businesses to make - for profit - costumes based on existing characters without permission from the original owners. Not gonna happen.
The moral of the story is this: if you're a business, you are not allowed to profit off the intellectual property of another without paying for it, and no court in the land is going to change the law to permit that. Get the license, make the costumes, make some money, and eat, drink, and be merry.