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Sabrina Macklai is an IPilogue Senior Editor and a 2L JD Candidate at the University of Toronto Faculty of Law.

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Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School. 

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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 , 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.Ěý

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 , 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 ±Ę´Ç°ěĂ©łľ´Ç˛Ô, Naruto, Final Fantasy, and beyond.Ěý

This year, Japan made 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 (, 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 and , given their classification as “useful articles.” Although there are complexities—for example, and —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 and the .

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 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 , including major copyrightable elements of an original, previously created work. lacks an analogous provision but does have other provisions under 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 ( in the United States and 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 , 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 and , strongly oppose fanfiction, believing it to be copyright infringement. The majority, however, see fan-made content as a form of , and essentially, free advertising for the original work. The author of the famed Twilight series, Stephenie Meyer, was known for and , which originated as a Twilight fanfic.Ěý

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.

The post Keep Calm and Fandom On: Copyright in Cosplay, Fanfiction, and Fanart appeared first on IPOsgoode.

Meena Alnajar is anĚýIPilogueĚýWriter, IP Innovation Clinic Fellow,Ěýand a 2L JD Candidate atĚýOsgoodeĚýHall Law School.Ěý

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Costumes can memorialize iconic movie characters even off-screen. Behind every costume is a designer whose vision and design breathes life into characters. But behind every designer, other figures may undercut and miscredit them.

¶Ůľ±˛ő˛Ô±đ˛â’s Cruella, , tells the story of two haute couture designers battling for recognition in the fashion industry. The film is also an origin story for . Oscar-winning costume designer created the film’s mesmerizing costumes with plenty of colour, whimsy, and, of course, animal prints. Life now imitates art as Beavan battles Disney for attribution for her work.

Beavan that Disney discussed co-branded products for Target and Singer Corporation as well as a possible fashion collection. But these talks ceased once production on the movie ended. Then, in May 2021, the fashion brand advertised a new, officially-licensed Cruella-inspired collection—without Beavan’s knowledge or attribution.

This is not the first time this has happened, even recently. In 2020, a licensed Harley Quinn-inspired did not involve the film’s costume designer, . These incidences raise the question: are creators unfairly excluded from these licensing processes?

The answered that question in June 2021 by calling out ¶Ůľ±˛ő˛Ô±đ˛â’s practice in reference to the Cruella-inspired licensing. Disney has . CDG President Salvador PĂ©rez Jr. : “Our work is reproduced for toys, costumes, fashion collections and more. Not only are we not allowed to participate in the profits made off of the merchandising, we aren’t even credited for our work on the original designs.”

Licensing requires ownership of the designs, which calls into question who owns a costume—the costume designer or the production company who them? Many costume designers’ contracts with big production companies currently . There are, however, some exceptions. , the designer for the television show Mad Men, entered a multi-year collaboration for a .

Conflict arises in contracts’ terms. Contracts typically allocate the rights to the film, , to the company. However designers may push back by arguing that . Many designers believe that they do not sign away their ownership rights for external merchandising or collaborations, while production companies counter that this is implied in their contracts. Two apparent approaches can resolve these contractual issues.

First, designers can negotiate and carefully draft s. But this approach can be unpredictable. Merchandising opportunities may only arise when designs become popular or if the film is successful. Further, it is uncertain how much of the costume design will be included in future merchandise. Creating a film character involves many contributors, so the merchandise may not relate to the character’s costume and therefore for the costume designer.

The second approach is more collaborative. Costume designers can pitch collaborations with certain brands to the production companies, , to ensure their attributions. But this approach also carries uncertainty based on whether companies would agree to such collaborations prior to the film’s release.

While the Cruella-inspired line continues to generate discussions on designer ownership and compensation, the issue still depends on whether big production companies will collaborate with individual designers beyond what they create for films. With the CDG’s continued public support, the film industry could implement changes to allow designers to receive compensation for not just their designs, but for their ability to immortalize characters through merchandise and fashion lines.

The post Cruella Costume Licensing: A Fashion Faux Pas appeared first on IPOsgoode.

Beware of the copyright

Generally, Halloween costumes are not protected by copyright as articles that serve a utilitarian function (i.e. clothing) are not eligible for protection when produced in quantities greater than fifty. However, not all aspects of a costume qualify as useful. For instance, masks are not considered to serve a utilitarian function and can indeed be protected by copyright in the United States. held that nose masks were not useful articles, and thus entitled to copyright protection. While there may not be an equivalent Canadian case regarding novelty masks, (c.o.b. SpareParts), a jewellery case, stated that “[i]t is not enough to hold without evidence that because jewellery is worn it is ipso facto useful.” This would suggest that the mere fact that something is worn, such as a mask, would also not be automatically considered useful and could be protected by copyright.

More recently, in the United States Supreme Court held that “the design of a useful article is eligible for copyright protection… if the feature (1) can be perceived as a two- or three- dimensional work of art separate from the useful article, and (2) would qualify as protectable pictorial, graphic or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated”. The Supreme Court determined that the design on the cheerleading uniform could be protected by copyright as separate from the clothing itself. This could have wide-reaching implications beyond Halloween costumes, as it would be beneficial to the fashion industry’s war against knockoffs.

Although this was a US decision, it helps to shed light on the potential scope of fashion copyright infringement. The protection of a design, be it fashion or Halloween costume, would extend protection beyond masks and jewellery. A specific design of colours and shapes, such as those on Varsity Brands cheerleading uniforms, are now eligible for protection. This would mean United States fashion designers could apply for copyright protection on stripes, buckles and many other artistic combinations.Ěý

Under section 29.22(1)(e) of the , it is not an infringement of copyright for an individual private use. While big box stores selling Marvel superhero costumes likely have a licence to do so, those putting together their costume at home need not worry. There is no need to fear the legal boogeyman, your homemade Halloween costume is unlikely to land you in a courtroom.

Spooktacular patents

There are a number of Canadian patents covering all aspects of Halloween. The Evil Eye () is a Halloween mask that has voice activated light-up eyes. There are even patents on your trick-or-treat bags! is a trick-or-treat bag with a light in the handle. The is another fun trick-or-treat patent to give unwary parents a trick in exchange for their treats. Even jack-o-lanterns are covered with the to make sure they are displayed for optimal spookiness. This year when you’re out collecting candy, take a second to look at all the inventive genius that has gone into Halloween over the years.Ěý

Candy

In 2019, estimated there were 4 million children of trick-or-treating age (5 – 14 years old). With all those candy-hungry children, it’s no surprise that revenue from ĚýHalloween candy was . With so much at stake, candy makers are eager to protect their money-making trademarks. Most, if not all, of the candies you know and love are protected by trademark law. The classic love-it or hate-it is protected by trademark. Hershey’s Chocolate has numerous trademarks, such as the classic or the phrase. In fact, even the of Hershey’s Kisses are protected!

Hershey and Mars are two of the big players on Halloween night. However, when kids are sorting through their piles of candy, little do they know of the battle that has raged between these two candy empires. In 2015 Mars and Hershey settled their US case regarding . This isn’t the first time that Hershey and Mars have been at odds. In 1998, that Mars infringed upon the trade dress of their Reese’s Peanut Butter Cups was dismissed. Understandably, Hershey is very protective of their peanut butter cups, and again filed suit against Mars for trademark infringement, but

So next time you hear someone say Halloween was “invented” by the candy companies you can say, actually, Halloween was perfected by lawyers!

Written by Maddie Lynch. Maddie is a second year JD candidate at Osgoode Hall Law School. She is a contributing IPilogue editor, Intellectual Property Journal editor and IP Innovation Clinic Fellow.

The post Forget Ghosts, Goblins and Ghouls, Watch out for Patents, Copyrights and Trademarks this Halloween appeared first on IPOsgoode.