So earlier last year, we talked about the major implications of the TPP (Trans-Pacific Partnership). Specifically, there were provisions included to protect intellectual property. As that was getting hammered out, it became clear it could potentially mean a crackdown on cosplay, especially professional cosplayers. Recently though, litigation over cheerleading uniform designs have sparked these concerns back up. So what the heck do cheerleading uniforms have to do with cosplayers? More than you’d think…
As W.T. Bane eloquently pointed out in his TPP post, any decisions from that partnership would most likely only affect the professional cosplayer. However, there are wrinkles that make this stateside issue more complicated. Let’s start with a question:
Can costumes be copyrighted?
A Cincinnati U.S. appeals court seems to think so, opening the case back up between Varsity Brands Inc and Star Athletica LLC. Varsity claims that they can copyright their cheerleader uniforms. Star believes clothing designs should be exempted. This leaves open a rather large door in multiple areas. For example, if Disney decided that every princess, Iron Man, or Han Solo costume design they pumped out was protected, you could say goodbye to anyone who wanted to create a derivative work for costume work. Now, much of this is already protected to some degree because you can’t just make your own stories and use the same likenesses
This particular piece of litigation wouldn’t out right stop the wearing of designs. However it could slam the costume making industry if media companies decided they no longer wanted you making money off your costumes. Licensing gets thrown back into the picture and it will definitely price out the smaller homegrown folks. Making designs on your own without the license of Disney, Marvel, you name it could effectively kill the cosplay industry.
The common defense for the big name cosplayers and for the industry as a whole is the PR angle. Surely these big companies wouldn’t dare piss off the fans for fear of losing out on good exposure or future monies, but this is problematic for one reason: Public domain
Wait, you’re confused? I’ll explain and I’ll enlist the help of everyone’s favorite corporate rodent Mickey Mouse to illustrate. Name off a few of your favorite Disney animated films, I’ll wait….
Finished? Okay, did any of them include the following?
Snow White and the Seven Dwarfs December 21, 1937
Pinocchio February 7, 1940
The Adventures of Ichabod and Mr. Toad October 5, 1949
Cinderella February 15, 1950
Treasure Island July 29, 1950
Alice in Wonderland July 28, 1951
Peter Pan February 5, 1953
20,000 Leagues Under the Sea December 23, 1954
Old Yeller December 25, 195
Swiss Family Robinson December 21, 1960
The Jungle Book October 18, 1967
The Many Adventures of Winnie the Pooh March 11, 1977
Popeye December 12, 1980
The Little Mermaid November 17, 1989
Beauty and the Beast November 22, 1991
Aladdin November 25, 1992
The Adventures of Huck Finn April 2, 1993
The Three Musketeers November 12, 1993
Yeah, Disney didn’t write any of these, only the respective screenplays attached to them. Even more recent movies like Frozen were based off of stories by Hans Christian Anderson. It’s a practice they kept alive and well for themselves. When stories and characters enter the public domain, it means that you could create your own version of Sherlock, Moby Dick, or Old Yeller without worrying about a copyright issue because everyone could use it. There was nothing to protect it except if someone made a blatant ripoff of your version (Like someone making a shot for shot copy of CBS’s Elementary, that wouldn’t work, but making your own Sherlock stories would be peachy). Now, with major efforts from Disney and others, the life of a copyright has been extended much further than originally intended. Mickey Mouse should be hitting the domain in 2019, but using character trademark as a protection, he will likely stay where he is.
I bring this up to showcase the mindset that Disney is employing in the legal realm. We keep saying that the PR argument will keep Disney and others like them from pursuing cosplayers, but look at what they’ve done to public domain. It’s almost nonexistent anymore thanks to the efforts of many studios. Is it that big of a leap to think they may want the cosplay piece of the pie and start carving it up? And the legal precedent isn’t exactly on the cosplayers side when you look at how ridiculous a neighboring system, the U.S. Patent office, has been operating the past few years. I won’t dive into the issues with patent trolls here (John Oliver already did a good job with that), but it’s a system that has been completely overrun by rampant and fraudulent litigation.
Major studios could flex their muscles with this ruling and smaller cosplayers wouldn’t stand a chance. Again, the community backlash would be huge and hopefully the hit to the wallet would be strong enough to make them rethink pursuing anything like this. But if you think a bad news cycle is going to be enough to stop some companies, then you’ve really missed the other elements at play here. As a regular, homegrown cosplayer, you should be fine regardless of what happens. But if this turns sour which it is ripened to be, then you can kiss your dreams of being a pro costume designer or cosplayer goodbye.
The Huffington Post had a great article recently that detailed the public domain issue:
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