The Legality of Fanfic and Cosplay

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Have you written a book? Created a gorgeous piece of artwork? Transformed your poetry from ideas onto paper? Protect yourself by registering a copyright (http://www.copyright.org). However, how do you know if you’re infringing on someone else’s copyright? The goal in creativity is expression, not litigation. In this informative panel on Sunday at the Hilton, Erica Farmer, Meredith Rose, and Courtney Lytle discuss the law and how it pertains to things Dragon Conners hold dear: fanfiction and cosplay.

The litmus test for copyright infringement hinges on several key questions:

  1. Are you making money?
  2. How transformative is the work?
  3. What is the nature and amount of what you’re borrowing from the original?
  4. What is the nature of the underlying work?

In relation to cosplay, there are a few things we need to consider. First is the idea of seperability between form and function. If you look at a t-shirt, for example, the image on the front of Bob the Builder is form; it’s an artistic design that is covered by copyright. The t-shirt is function and is not covered by copyright. Depending on where you are, there could be up to 10 different tests for separability. So, if you’re selling your props, one thing you need to ask yourself is, is this form or function? It’s arguable that a storm trooper costume is clothing. Is that storm trooper costume different enough from the original? Are too many things borrowed?

For cosplay, there is really no good answer except, as Rose states “don’t make Disney or Nintendo props.” It stands to reason they are very protective of their designs.

In fanfiction, the line is a bit clearer. So, there are a few things to consider. First, are you making money from the fanfiction in any way (this includes donations or monetized advertising)? Second, are your characters sufficiently delineated from the original? Does your boy wizard have a lightning-shaped scar and the ability to speak to snakes? Or, can you switch out the character with a Bill the gardener and have it still work the same way? It’s a hard sell to call copyright infringement on a character you can replace.

An archetype for a character and a trope for the story are also not copyrighted. It’s not the idea that you protect, but what you make from that idea. A boy who saves the world is a generic trope, but a boy who saves the wizarding world from a dark wizard who has split his soul into seven pieces and hidden them in special objects—that’s the specific expression of an idea.

So, the bottom line is—if you’re writing fanfic, don’t try to make money off stories that use the original, specific characters in their canon universe. The story has to be transformative enough that you wouldn’t recognize the original within its pages. As much as I hate to use the almighty example—if you’ve read Fifty Shades of Grey—you wouldn’t recognize Edward and Bella in it beyond the general archetypes of the stalker billionaire and “she doth protest too much” love interest. Also, those disclaimers that talk about how the fanfic author doesn’t own the character? Those actually hurt the fanfic author’s case in court because it’s an admission, in writing, to copyright infringement.

If you are unsure as to the nature of the underlying work or the degree of transformation in your own, always err on the side of not getting sued and consult an attorney.

About the author

JP Barnaby JP Barnaby, an award-winning gay romance novelist, is the author of over two dozen books, including Aaron and Painting Fire on the Air. When she's not hanging out with porn stars or being spanked by hot guys in leather, she binge watches shows like Daredevil and Agents of Shield. A physics geek, she likes the science side of Sci-Fi, and wants to grow up to be Reed Richards.

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