Cosplay And Copyright Law: Infringement Or Creative Expression?

Introduction

Cosplay, short for ‘costume play’, refers to people dressing up in costumes portraying characters of anime, manga, video games, films, or comic books. A hobby confined to conventions is now worth multi-billion dollars in terms of revenue being generated by way of selling the costumes, social media monetization, and cosplay contests during the conventions, and professionally performing the character impersonations. The worth of the global cosplay industry was estimated to be around USD 6.25 billion as of 2023 and is predicted to see huge growth till 2030.

Nevertheless, along with all the creative aspects and love involved in the culture lies the controversial problem of whether cosplay infringes upon the law of copyright infringement. Does cosplay constitute a violation of copyright laws, or can it be considered within the ambit of creativity? This is one question that is not easy to answer, and it will depend on things like commercial use of cosplay, jurisdiction of the case, reproduction, and whether it constitutes derivative work.

The purpose of this blog is to make a critical analysis of the problems of cosplay within the context of copyright law, both nationally and internationally.

Copyright Protection of Fictional Characters: The Legal Foundation

Before discussing cosplay, it is necessary to acquaint oneself with the copyright protection available for fictional characters. According to the Copyright Act, 1957 (India), artistic, literary, and dramatic works that are original and exist in material form become eligible for copyright protection, as provided in Section 13- Original fictional characters can be considered eligible for copyright protection under the category of literary and artistic works.

The doctrine relating to copyright ability of fictional characters was laid down in the landmark case of DC Comics Inc. vs. Mark Towle by the Ninth Circuit of the US Court of Appeals in 2015.^[1] In this case, DC Comics brought a suit against a mechanic who was manufacturing replicas of Batmobile for sale at a price tag of $90,000 without taking authorization from DC Comics. The Ninth Circuit held that the Batmobile is an example of a copyrightable “character” rather than a mere vehicle appearing in any comic books, which satisfied the following criteria: (i) The character needs to have both tangible and intangible attributes; (ii) It must be well-defined and unique enough to distinguish itself; (iii) It must possess certain distinctive features and unique expressive traits. The Court held that Batmobile met all these requirements due to its bat-like shape, futuristic weaponry, and crime-solving capabilities.

The Towle case affects cosplay in the sense that characters as well as many other related things like cars, costumes, and props are eligible for copyright individually provided they satisfy the criterion of distinctiveness. Thus, this case gives way to claims of infringement in the area of commercial reproduction of these things by cosplayers.

As far as copyright law in India is concerned, there are no decisions involving character copyrights in respect of cosplay, but in the case of Eastern Book Company v. D.B. Modak decided in 2008^[2]The Indian Supreme Court adopted the minimum degree of creativity test for determining the nature of the protected work from derivative works in accordance with the famous Feist case. In this light, the Copyright Act, 1957, of India provides that copying of cosplay costume without adding any creativity to it would be treated as an infringement of derivative works.

Cosplay as Potential Copyright Infringement: Key Legal Issues

1. The difference between non-commercial and commercial cosplay

There are many differences between non-commercial cosplay and commercial cosplay, but the most important distinction in cosplay law is that between personal and commercially motivated cosplay. Non-commercial cosplay, such as participating in a personal event where the person wears a costume, takes photos, uploads them on the Internet on social media platforms, and participates in competitions without earning any profit from it, will generally not constitute copyright infringement and will be accepted by the copyright holders.

The situation drastically changes once commercial aspects come into play. Under Section 51 of the Copyright Act, 1957, it amounts to copyright infringement whenever there is any copying and communication of copyrighted materials to the general public. Whenever the cosplayer earns money from selling the costume made out of the copyrighted character or gets monetary support or wins money from the competition, it means that they have crossed the line of non-commercial activities.^[3]

There are reports of Twitch and YouTube identifying or deleting monetised videos that show cosplay of copyrighted characters, showing how copyright protection is carried out through the policies of digital platforms. Pokemon Company International has taken steps to address an individual who used the Pikachu character and other character images in promoting a commercial convention.^[4]

1. Derivative Works and the Right of Reproduction

If a cosplay outfit reproduces the look of a protected copyrighted character design, then that will come under the category of “derivative works” according to Section 14(1) (b) of the Copyright Act, 1957 since this will represent an adaptation or translation of the copyrighted work and creating a derivative work represents an exclusive right vested in the copyright holder. If the individual cannot prove any sufficient degree of independent creativity in their cosplay outfit, then it could be deemed as an unauthorized derivative.

According to The Walters Law Group, the complexities associated with the ownership in cases involving cosplay-adjacent claims have multiple layers. In case the outfit is inspired by a character in the movie, there might be conflicting claims for intellectual property between the copyright holder of the book from which the character was taken, the studio that created the movie and the customer who made the outfit. For instance, a case involving a cosplay outfit inspired by Edward Cullen of the Twilight saga would involve both Little, Brown & Company and Summit Entertainment.

1. Trademark Dimensions

Cosplay involves additional issues under the scope of trademark. The logos, character names, and brand marks incorporated within the costumes will be separately protected under trademark law. According to Section 29 of the Trade Marks Act, 1999, an unauthorised use of a mark registered by any entity during business operations may lead to infringement proceedings. Disney has been known to institute litigation in the past against businesses that use its licensed princess characters and branding without permission, especially when there is an issue with confusion on sponsorship or association.

The most notable case from the United States on this matter is Disney Enterprises, Inc. v. Sarelli, wherein the lower court ruled on a character-for-hire business that utilises Disney character costume-wearing actors. Even though there was no proof of consumer confusion in that particular trademark case, it demonstrated that trademark law imposes restrictions on commercial cosplay activities irrespective of possible copyright defenses.

Fair Dealing and the Defence Available to Cosplayers

While the American system has “fair use,” the Indian copyright statute adopts the “fair dealing” principle. Fair dealing in accordance with the Copyright Act, 1957 includes certain types of acts which do not amount to an infringement of copyrights such as fair dealing for: (i) Private use, including research; (ii) Criticism or review; and (iii) Reporting of current events.^[5]

In the case of Academy of General Education, Manipal v. B. Malini Mallya (2008),^[6] The Supreme Court has clearly established that acts covered by Section 52 do not amount to infringement of copyright. In the case of Civic Chandran v. Ammini Amma,^[7] The Kerala High Court has gone, one step ahead, declaring that substantial copying can be permitted through the fair dealing exception clause if it is for a good public cause.

For cosplay, the most important provision would be Section 52(1)(a) wherein fair dealing for private or personal use is considered a non-infringing act. Based on the above provision, the cosplayer who practices the art of cosplay solely as a personal hobby and not for any commercial benefit will have a valid defense of fair dealing. While the American system has “fair use,” the Indian copyright statute adopts the “fair dealing” principle. Fair dealing in accordance with the Copyright Act, 1957 includes certain types of acts which do not amount to an infringement of copyrights such as fair dealing for: (i) Private use, including research; (ii) Criticism or review; and (iii) Reporting of current events.7

In the case of Academy of General Education, Manipal v. B. Malini Mallya (2008), the Supreme Court has clearly established that acts covered by Section 52 do not amount to infringement of copyright. In the case of Civic Chandran v. Ammini Amma, the Kerala High Court has gone one step ahead, declaring that substantial copying can be permitted through the fair dealing exception clause if it is for a good public cause.

For cosplay, the most important provision would be Section 52(1)(a) wherein fair dealing for private or personal use is considered a non-infringing act. Based on the above provision, the cosplayer who practices the art of cosplay solely as a personal hobby and not for any commercial benefit will have a valid defense of fair dealing.

The Emerging Controversy: Monetised Cosplay and Digital Platforms

As there has been an explosive increase in the creator economy, legal issues have emerged for cosplays too. Professional cosplayers who derive their earnings from their cosplay through social networking sites such as Instagram, Patreon, Only Fans, and YouTube are considered “fantrepreneurs” because they are perceived as fan producers, engaged in monetization but experiencing legal troubles related to copyright protection.^[8]

In the Indian legal landscape, 2025 saw the rise in copyright enforcement in the digital domain. In May 2025, the news agency Asian News International (ANI) filed a copyright strike against several Indian YouTubers, namely Dhruv Rathee and Mohak Mangal, for using copyrighted news footage in their commentaries on those issues. ANI filed several copyright strikes, which allegedly included demands for as much as INR 45 lakh to withdraw them. Although the case did not concern cosplay, the issue should be considered relevant since it shows how actively rights owners enforce copyright claims in India and the lack of legislation in the realm of fair dealing on digital platforms.

The case of Japan is especially worthy of examination. The country known for introducing the term “cosplay” started considering ways of regulating monetized cosplay in 2021, when the Minister of State for Cool Japan admitted that while non-profit cosplay did not bring up any immediate issues, the increasing number of cosplayers created a growing danger of legal disputes.^[9] Japan went on to discuss regulations that would enable cosplay with a license or an exception from law for certain types of cosplay that produced some income for participants.

Where influencer agreements are concerned, professional cosplayers might also be bound by rules set forth by the FTC regarding influencers in the US, or the ASCI Influencer Advertising Guidelines, 2021, in India, where influencers are required to reveal their paid partnership with the advertised products or services. An agreement between an influencer and another party might make one liable to breaching the agreement in case of unauthorized use of copyrighted characters.^[10]

Practical Implications for the Cosplay Community

Some of the implications derived from the above legal analysis include the following. First, cosplayers whose work is non-commercial in nature in India enjoy strong legal immunity from liability due to Section 52(1)(a) of the Copyright Act of 1957, and rights owners have never taken legal actions against any fan cosplayers before. Second, when the activity is made for profit, either through the sale of costumes and props, collecting fees for participation at cosplay events, sponsorships, and even monetisation on digital platforms, legal exposure increases. Third, cosplayers who add a touch of creativity, such as combining two characters or reinterpreting one in a new culture or producing parody, are better off legally speaking than cosplayers who only copy. This can be informed by what the Supreme Court of India stated in Eastern Book Company v. D.B. Modak concerning the threshold of creativity to qualify for copyright protection.

Fourth, issues related to trademark rights have to be considered separately. Even if there is no copyright infringement, the use of logos and characters' names in commercial cosplay can cause trademark infringement. Commercial cosplayers can stay safe from the issue if they make their designs inspired by the character while not using any protected logos or trademarks.

Conclusion

The phenomenon of cosplay falls into a legally undefined space within the field of intellectual property laws. Being at the crossroads of being a fan, derivative work, commercial practice, and culture, this practice remains unaddressed by copyright laws tailored for an analog world. In India, copyright laws provide comprehensive protection of original characters through Sections 13, but a fair dealing exception provided in Section 52 can apply in the non-commercial practice of cosplay; however, it becomes tenuous as soon as any commercial aspect enters the equation. There are no Indian court cases on cosplay in particular.

Global tendencies indicate that stronger enforcement is bound to follow as cosplay gains economic importance. The US case law on Towle establishes that the courts will not hesitate to apply copyright law to the distinctive features of an iconic character, regardless of the character itself, while the ANI-YouTube dispute in India during 2025 shows how aggressive IP owners can be in enforcing their rights digitally. On the other hand, IP owners have always been judicious in their approach to enforcement, opting to sue business enterprises rather than individual users.

In terms of policy, India would gain from the enactment of legislation clarifying the position with regard to cosplay and fan art in accordance with the Japanese method of consultation. The introduction of an exception to the copyright laws or even the interpretation of an existing provision, possibly along the lines of the doctrine of transformative use, will give cosplayers scope for exercising their creativity while still setting the boundary clearly with respect to any form of commercial use.

 Footnotes

1 2 DC Comics v. Mark Towle, 802 F.3d 1012 (9th Cir. 2015).

2 Eastern Book Company & Ors. v. D.B. Modak & Anr., (2008) 1 SCC 1.

3 The Copyright Act, No. 14 of 1957, § 51, India Code (2012).

4 Trademarkia, Cosplay & IP: Rights, Risks, & How to Stay Legal, Trademarkia News (Aug. 19, 2025), https://www.trademarkia.com/news/legal-info/cosplay-and-intellectual-property-guide.

5 The Copyright Act, No. 14 of 1957, § 52(1)(a), India Code (2012).

6 Academy of General Education, Manipal & Anr. v. B. Malini Mallya, (2009) 6 SCC 779.

7 Civic Chandran v. Ammini Amma, (1996) 16 PTC 670 (Kerala HC).

Lori Morimoto & Mel Stanfill, Cosplay on Demand? Instagram, OnlyFans, and the Gendered Fantrepreneur, Transformative Works and Cultures (2021), https://www.academia.edu/66412451

8 The Reel Stars, Inside India’s Creator Controversies of 2025: Influence, Backlash and Lawsuits, The Reel Stars (2025), https://www.thereelstars.com/?p=21149

9 Asia IP Law, Japanese Government Starts to Consider Issues of Cosplay, Asia IP Law (Feb. 16, 2021), https://asiaiplaw.com/article/japanese-government-starts-to-consider-issues-of-cosplay

10 Bobby Desmond, supra note 6.

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