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wolf10 wrote:

Enako is mentioned in the article, and she makes a lot of money. Like, close to six figures USD, as of four years ago. Who knows how much more she's making now.

Granted, she does a lot of "official" cosplay, which is nothing new for the cosplay scene, but if she's using that fame to also make bank on unlicensed appearances, that is definitely a loophole that needs some kind of a fix.

But every cosplayer I've ever known has done it for themselves and never made a dime, even from photoshoots with "pro" cosplay photographers.

There is a lot with this. Yeah, there are those who do it for fun and don't make money off it, but...

There are those who like Enako who are famous enough that they can. The other thing to think about, and I think may be the real advent of this, is OnlyFans. People think of it as adult only, but there are cosplayers who are using it to generate income with non-adult content (the former Zelina Vega of WWE opened one for that purpose), and that's not taking into account the cosplayers who do put adult content on OnlyFans too.

Ryujin99 wrote:

For one example: suppose a fan creator makes $200k USD in profit from their work (intentionally choosing a generally unrealistic number). Now suppose that 190k of that is original work that doesn't involve other copyrighted works, while the remaining 10k is split evenly across works involving IP from 100 different copyright holders. Should they fall into the $200k tier, the $10k tier, or the $100 tier?

For another example: suppose another fan creator also makes $200k from their work, but their income is all from crowdfunding sites like Patreon and all of their works involve IP from other copyright holders. Let's go with 100 different copyright holders, but let's assume that their distribution of works is uneven between IPs. Should they be in the $200k tier, the $2k tier, should they fall into different tiers based on how many works they produce for a given IP, or something else entirely?

This is incredibly interesting and delicate. Thank you for the explanation.

I wonder how this'll affect professional cosplayers like Yaya Han or competitive cosplayers who make/create cosplays for prize money?

Last edited by Tempest on Mon Jan 25, 2021 6:29 pm; edited 1 time in total

samuelp wrote:

I don't think anyone can argue that cosplay is any "more" legal than fanart.

Except they can.

The ethics of cosplay are an entirely separate issue. If you want to equate cosplay and fanart ethics, that's a matter of opinion, and I would agree that they are very similar.

Fan Art is copyright infringement, but may be fairuse in certain cases and juridictions. While many people don't understand the nuances, you (@samuelp) obviously do. Razz

Cosplay is much muddier. In the USA, only certain aspects of costume design are covered by copyright.

Answerman covered the topic here: animenewsnetwork.com/answerman/2018-06-20/.133128 and there's a more technical article from a lawyer here: https://www.thelegalartist.com/blog/when-cosplay-makes-you-liable-for-copyright-infringement

In otherwords, I'd say Cosplay is indeed more legal (or rather, less illegal) than FanArt under US Copyright law.

-t

revolutionotaku wrote:

I wonder how this'll affect professional cosplayers like Yaya Han or competitive cosplayers who make/create cosplays for prize money?

It won't affect them at all except when they do it in Japan.

Copyright is governed by local laws, not the laws of the country where the "property" originates. For example, the original Mickey Mouse cartoons became public domain in many countries a long time ago, while they are still covered by US copyright for a while yet.

-t

Tempest wrote:

Id like to ask you a q, cosplay generates awareness for a series, that in return generates money for the people who own the rights to the series. Imo Cosplay should NOT be copyrighted as its an expression of freedom and they're already raising awareness for the series' the chars come from, but i'd like to know, what's your take on what I've said? I mean its not like most would make much if anything from doing it, mean while the interest others took and got into the series would provide either little to a lot for the series' copyright owners so imo the copyright owners are already benefiting way more than a single person does, more so if multiple people cosplay the series' chars vs just 1 person.

I get the reasoning here, but I do have some concerns. If it was just "pay for this license to use our character to make bank", it'd be one thing, but copyright allows a creator to reject people cosplaying them at all if they want, which... isn't great. But ultimately, it also puts erotic cosplayers on a bit of a chokehold in that area, as I find it really hard to believe anyone would give someone else free reign to lewd their character for money (and many do it for a living, not just to make good bank). There's also questions in the air regarding creative ambiguity. For instance, would an original design with a Pokemon motif count? Someone cosplaying a Pikachu might be wearing the iconic ears and tail with red cheeks painted on, but unless you're in a mascot costume, you're likely to be wearing pants/dress/skirt and a shirt/top, two things Pikachu clearly doesn't have.

-Tarō Yamada, a member of the Japanese House of Councillors and the leader of the "Party to Protect Freedom of Expression,"-

I'm always wary of anyone who is such a staunch proponent of freedom of speech. For every Larry Flint, you'll have a dozen George Lincoln Rockwells.

Villain-chan wrote:

Id like to ask you a q, cosplay generates awareness for a series, that in return generates money for the people who own the rights to the series

You're not asking a question - you're making a statement, one based on a completely unsupported notion. (That cosplayers noticeably increase sales of a piece of media.)

PseudoFiction wrote:

-Tarō Yamada, a member of the Japanese House of Councillors and the leader of the "Party to Protect Freedom of Expression,"-

I'm always wary of anyone who is such a staunch proponent of freedom of speech. For every Larry Flint, you'll have a dozen George Lincoln Rockwells.

I'm just as wary about "freedom of speech" advocates as you are, but this is a guy known for promoting LGBTQ+ rights, equal gender marriage rights (to allow women to retain their family names, for instance), fighting for the doujin industry (including for derivative doujinshi), and better working conditions for people in the entertainment industries as a whole (with a particular focus on people with disabilities, a worker group commonly affected negatively by policy that pretends they don't exist in Japan). The "Party to Protect Freedom of Expression" (表現の自由を守る会) is just a small group of activists that act kinda like the CBDF, showing up to defend people in court who have been unjustly charged with crimes for creating art, like the woman who was jailed for selling art of her genitals. He legit got elected to the LDP by campaigning almost exclusively on promises to protect the anime/manga/game/etc. industry from copyright laws and pressure from abroad to censor art in Japan. He is known as the guy who blared vocaloid music from his campaign van in an attempt to share appreciation for what independent creators can do when they aren't bogged down by copyright law (since vocaloid software allows people to use the characters and voice tools free of fear of copyright infringement).

So yeah, an all-around pretty cool dude. Besides, the Japanese left vs. right (or rather, progressive vs. conservative) is a vastly different political conversation than it is in much of the rest of the world. The progressive side is usually the side defending freedom of speech/expression, due to some efforts on the conservative side to censor certain "undesireable" things, like showing or "promoting" gay people on tv, or creating movies showing the Japanese government as mistaken in WWII, or just porn in general. I would be careful when trying to equate "Western" left vs. right dynamics to politics in other parts of the world with vastly different backgrounds.

Tempest wrote:

Answerman covered the topic here: animenewsnetwork.com/answerman/2018-06-20/.133128 and there's a more technical article from a lawyer here: https://www.thelegalartist.com/blog/when-cosplay-makes-you-liable-for-copyright-infringement

In otherwords, I'd say Cosplay is indeed more legal (or rather, less illegal) than FanArt under US Copyright law.

-t

Reading the second article, I'm not sure I agree with your takeaway. They say that the "design" of the costume could definitely be copyright infringement, and that manufacturing and selling them for profit you should get a license.
They say that an individual _wearing_ the costume is not copyright infringement, but in the case of cosplay the individual is often the person who created the outfit, and if they are using it for a money money purpose (events), I don't see how that wouldn't follow the same argument as if they were selling it instead: it's still using the design for profit.
Consider, for example, if a cosplayer took photos of themselves in the costume and then sold those photos. That'd clearly be copyright violation.

Answerman agrees with me here:

Quote:

However, unless you're dressing up and playing the character for money (such as party entertainment or in a play or something), you're probably okay. Selling the costumes would be a money-making operation (and probably a derivative work, as far as copyright is concerned), and would be much riskier. Only a court can say for sure whether that would be a violation or not, and I don't know that any case like that has ever gone to trial.

It's no different than fanart. There's a limited amount of fair use wiggle room but once you start making money off your cloths you can get in trouble.

At any rate, we are discussion Japanese copyright law, not US law. And there, I think the spirit of the law (even if there isn't anything directly addressing) is pretty clear about profitable exploitation of IP of any sort.

Hmmm, I guess my only question on this would be, what if someone wants to cosplay as a certain character, but then makes their own original costume for the character? Like it's still the character from the series, but in an outfit that has never been seen or used in the games/anime/manga/light novels/etc. that the character is in. How would that work?

Last edited by Tempest on Tue Jan 26, 2021 3:25 pm; edited 3 times in total

Tempest wrote:

Id like to ask you a q, cosplay generates awareness for a series, that in return generates money for the people who own the rights to the series.

This is a very complex issue with so many different aspects that it's impossible to come to an objective determination. Ultimately, even the most educated opinion on the matter will still come down to what that particular person finds more important.

This is something that would be better covered in a well thought out, planned, and edited article, but I don't have time for that, so here it is all from the top of my head. I apologize that it will likely feel incomplete or disjointed.

If we want to break it down and look at the different aspects someone might take into consideration, I think the first place to break it down would be moral rights vs. copyright. We don't talk about author's rights (or moral rights) in the west very often, but they are a big part of copyright in other parts of the world, particularly countries with civil law (as opposed to common law); Japan's system is one of civil law.

You can read more about author's rights and moral rights on Wikipedia here. But the key take-away about moral rights is summed up in this paragraph:

Quote:

The protection of the moral rights of an author is based on the view that a creative work is in some way an expression of the author's personality: the moral rights are therefore personal to the author, and cannot be transferred to another person except by testament when the author dies. The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honor or reputation. In many countries, the moral rights of an author are perpetual.

In other words, the creator of a work has the right to object to derivatives of their work for moral reasons. This is what Ikeda is doing when she says she doesn't like it when people cosplay as her characters.

Another things to look at would be the harm caused to the brand by bad cosplay. Some financial rights holders might be concerned that bad cosplay might hurt the image of a show (personally it's a long shot, but the right to control the brand perception is an important consideration in most trademark / copyright discussions, so I brought it up here).

The right to control and make a profit off of creation of derivatives of the original work, exploitation of the original work and even exploitation derivatives of the original work. The idea here is that if your work is based on someone else's work, the original creator should share in the benefits of your work. They should also have the right to stop you from creating derivatives if you can't agree to terms that satisfy them, or if they do not approve of your intent.

Cosplay costumes are derivative works. Cosplaying is effectively a performance using a derivative product (ie: the costume). You could easily argue that cosplay is a form of theater, where the cosplayers are performing as characters from the original work. It seems reasonable to say that the rights holders deserve compensation from commercial performances, whether they be Broadway adaptations, or cosplay adaptations.

For some people, these aren't about weighing the pros versus the cons, but they are about the principles. The creators and rights holders often feel that they have certain rights, and regardless of the financial impact, they feel that it is an affront if those rights are impinged upon.

On the other hand, I'd also like to touch briefly upon fair use. Japan doesn't have much fair use at all (they do have some!), and they don't have any legal concept of transformative works as far as I know. Transformative fair use is extremely strong in the US; it allows a creator to take someone else's work and transform it in such a way that they have created an entirely new work. It can certainly be argued that cosplay can be transformative, but most of the time cosplayers are striving to be as faithful to the original as possible, which is more akin to "copying" than "transforming." Changing just the medium isn't particularly transformative. As I said, I don't think Japan has any precedent for transformative fair-use, it's an American concept that's been around for less than 30 years. Would you believe that you have 2 Live Crew to thank for this legal concept?

Discussing fair use isn't legally relevant to the Japanese situation because Japan doesn't have Berne or US style fair use exemptions for stuff like this. But, it's still interesting. If Berne style fair use were to apply to costumes, would cosplay be "fair-use?" Probably not. Cosplay usually isn't criticism, comment, news reporting, teaching, scholarship, or research. Further more, if the costume itself is the copyrighted work (as opposed to the anime/or manga as a whole), then the cosplay is a very significant reproduction, not just an small portion. As noted above, cosplay usually isn't particularly transformative (although in some cases it can be very transformative). Finally we get to the financial questions. Is the cosplay for profit, and does it have a negative impact on the ability of the rights holders to exploit the work. Normally the answer to both these questions is a resounding no. The cosplay at issue right now is only that small fraction of cosplay that is done for commercial purposes.

My personal opinion? I agree with you @Villain-chan. There's not a lot of money for rights holders to make off of cosplay performers, and fan-activities like cosplay, fan-art, fan-fiction, etc. contribute tremendously to the popularity of various franchises, and even the whole medium (anime and manga) itself. From a practical point of view, I think any move by the industry to limit or "tax" cosplay is tremendously stupid.... which isn't to say that it's not legally justifiable for them to do so.

While I do think that copyright should apply to costumes (within reason), but as a proponent of copyright reform (copyleft), I think that there should be significant limits on that copyright and plenty of fair-use, including "transformative" fair use. I believe that not-for-profit derivative performances should be fair use (they aren't).

That said, at least Japanese law makes a distinction between for-profit and not-for-profit cosplay. This is similar to but better than the way US courts look at fair-use, as certain infringements become "less fair" is they are done for profit. In Japan's case, it seems they've outright said that non-commercial cosplay is not an infringement of copyright law.

Last edited by Tempest on Tue Jan 26, 2021 2:30 pm; edited 1 time in total

samuelp wrote:

Reading the second article, I'm not sure I agree with your takeaway. They say that the "design" of the costume could definitely be copyright infringement, and that manufacturing and selling them for profit you should get a license.

I think your takeaway missed a key aspect. In many cases, it's not the "design" of the costume that's protected, it's the design of specific parts of the costume.

In the particular case of the cheerleader outfits, it was only the pattern of the decorations on the outfits that copyright applies to.

Quote:

At any rate, we are discussion Japanese copyright law, not US law. And there, I think the spirit of the law (even if there isn't anything directly addressing) is pretty clear about profitable exploitation of IP of any sort.

Agreed, however I felt your statement that "I don't think anyone can argue that cosplay is any 'more' legal than fanart," was meant to be universal, not specific to Japan. Which is why I thought it was relevant to also look at this from a North American point of view.

So like Doujinshi? They ain´t kosher either. Another incomprehensible Japanese copyrigth law law in the making. Put it on the pile.

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