Will the new TPP copyright provisions hurt homemade Halloween costumes and cosplay?

Leaked drafts of the Trans-Pacific Partnership [TPP], specifically the chapters addressing copyright and intellectual property, reveal that the trade agreement may have dire consequences for those in particular fandom communities.

If you enjoy cosplaying (the act of creating costumes and dressing up as favourite characters) or selling your own original art featuring licensed characters like Spider-Man, Iron Man or the Hulk at fan conventions and you live in one of the 12 countries who negotiated the TPP (including Canada), you may want to pay attention.

“If you're doing fan art that uses large amounts of the original source material and it's going online, that's the riskiest kind of stuff,” says Jeremy Malcolm, Senior Global Policy Analyst at the Electronic Frontier Foundation, a leading U.S.-based non-profit organization dedicated to defending civil liberties in the digital world.

This is because the TPP applies criminal charges to copyright infringement that's of a “commercial scale,” so any time art or anything else featuring a copyrighted character or idea is sold through an online store, such as Etsy or Redbubble, the number of customers who could potentially buy it is considered of a commercial scale. However, the TPP also states that an infringing person does not need to be part of a for-profit enterprise to be of commercial scale and can still subject to criminal charges.

Suffering for their Art

“The way they've defined it in the TPP, something can be defined as commercial scale, even if you're not making any money from it. So, if you're posting things like fansubs, [original movies or TV shows with new fan-made subtitles] those are things that are usually posted for free, even though they could be sold,” says Malcolm. “There are a lot of people viewing and distributing fansubs, so they count as being commercial, even though they're not.”

As a result, those independent artists who sell original art featuring licensed characters at conventions or online – even if they're just displaying this art for free on sites like DeviantArt – could also be subject to criminal prosecution.

“Not only artists, but the platforms that they use to post their art, should be concerned,” says Malcolm. “Particularly if you are an intermediary who hosts a bunch of fan artists, the copyright holder is very likely to come after you as an intermediary because it's easier to take down a bunch of stuff at once, rather than go after two dozen individual artists.”

If someone is found infringing on copyright under the proposed TPP rules, they could face several different outcomes, including having to pay for damages.

The offending material could be confiscated and though the TPP doesn't specify a civil offence dollar figure, it does state that the court must be able to award damages as compensation. The TPP also outlines additional damages beyond compensation that are meant to discourage others from infringing on the copyright. It says the court can use the retail price of the infringing goods to assess what those damages should be and the copyright holder is allowed to suggest whatever additional damages they believe would be appropriate.

“Overall, the worst parts of the copyright provision are in these increased damages and other remedies that are required to take place, such as the destruction of goods,” says Jamie Love, director of Knowledge Ecology International – a knowledge resource management organization that was one of the first to leak a TPP draft.

The potential consequences of the TPP don't stop at artists and anime fans. Some cosplayers will have to look over their shoulder. Even some Halloween costumes may technically infringe on copyright.

Cosplayers Beware

Central to any fan convention is the masquerade: cosplayers come from far and wide to show off their homemade interpretations of some of their favourite costumed heroes and other characters from the annals of pop culture. It's extremely difficult to make your way through any fan convention without being stopped by people taking a photo of someone dressed as their favourite character.

“Electronic Frontier Foundation would argue that cosplay is going to be 'fair use' in the United States and hopefully in Canada as well,” says Malcolm. “There's always a bit of creativity involved there where you're interpreting what you see on screen and on the page and putting the bits and pieces together in a slightly creative way.”

Since 2011, the Canadian Copyright Act's Fair Dealing clause has come a lot closer to the U.S.'s Fair Use exception because that's the year when the act was amended to include satire and parody. One could argue that cosplay is a type of parody or satire, given that these costumes are homemade and often not exact copies of the original material.

Instead, these costumes are almost always interpretations of the character as seen through the eyes of the fans who have made and/or are wearing them. A fan is often satirizing, critiquing or parodying the character through what they choose to include, omit or reinterpret in the costume.

However, not every country that negotiated the TPP has a fair use exception in their copyright laws. The Electronic Frontier Foundation tried to advocate for a mandatory fair use clause in the TPP in exchange for the agreement's harsher enforcement measures, but having fair use was made a voluntary condition during the negotiations. So with the exception of the U.S., Canada and perhaps Malaysia, fans in the other partner countries – including Peru, Chile. Mexico, Japan and Australia – may all be susceptible to harsher interpretations of the TPP copyright provisions.

“As a result, many of these countries are going to be unbalanced because they only have one side of the American-style rules. They've got the harsh enforcement measures and the long copyright terms, but they don't have the fair use clause to balance that out,” says Malcolm.

Harsh on Halloween?

Generally, Halloween costumes are acceptable, as most people pay money to buy an officially licensed costume. But what about unlicensed, homemade costumes depicting licensed characters, is that also copyright infringement?

“In theory yes, some Halloween costumes could be considered copyright infringement,” says Malcolm. “But that is probably an example where governments wouldn't enforce it. However, if these things are tolerated than they should be legal. You shouldn't be under the shadow of doing something even technically illegal if it's something everyone accepts like Halloween costumes.”

Cosplay has its own version of what can be interpreted as commercial scale and that's where things get a little riskier.

Under Fire as a Cosplayer for Hire

Thanks to Hollywood's seemingly never-ending slate of superhero movies, fandom has gone mainstream. As a result, cosplay has become much more popular and for the people who are really talented at it, big business.

Women with model good-looks and names like Yaya Han, Lee Scion and Riddle all make a pretty decent livings touring the comic convention circuit and promoting themselves online dressed as licensed characters like Scarlet Witch, Black Widow and Princess Leia. Given that they're not only making money from this but have an Internet-generated audience that spans the globe, they could all be classified as operating on a commercial scale – particularly because they disseminate pictures of themselves dressed as licensed characters to large audiences through Facebook, Twitter and YouTube.

In Toronto alone, there's Toronto Batman, Toronto Spider-Man and the Toronto X-Men, all of whom make money (sometimes for charity) from appearances and by playing their characters in videos on YouTube. But even if they weren't making money, the mere fact that they have a large Internet presence means they qualify as a commercial scale enterprise.

“The people who are doing it semi-professionally are definitely at more risk because that's one of the factors that would be considered not only in a fair use calculation, but also when assessing damages the rights holder could ask for,” says Malcolm.

Much Ado About Nothing

Then again, according to John Simpson, copyright and trademark lawyer at ShiftLaw in Toronto, unlicensed costumes and drawings were always technically illegal under the Canadian Copyright Act, long before the TPP was negotiated. The only thing that will potentially change under the TPP is the longer copyright term and the stricter enforcement measures.

“I don't see how the TPP affects these fan activities, one way or another, at all. This is generally a murky area of copyright law, both in terms of what is and isn't permitted and what is and isn't enforced,” says Simpson.

“The Canadian Copyright Act on its face has and does right now prohibit a lot of the things that happen at geek conventions. The Copyright Act applies to costumes of trademarked and copyrighted characters and reserves a lot rights in their performance and reproduction to the copyright owner exclusively. It always has. As far as I know, the extended reach of the TPP only applies to undoing of digital locks on electronic content and rights-managed works, it doesn't extend to this sort of conduct.”

Jamie Love of Knowledge Ecology International agrees.

“I don't think people who go to fan conventions are significantly singled-out by the TPP per se,” says Love. “Most of the provisions you can see were more or less written either for pharmaceutical products or they were written for file-sharing type activities. Now, that isn't to say that there aren't sometimes unintended consequences for other groups.”

The knowing reproduction or infringement of copyright for commercial purposes is already subject to criminal sanctions under The Canadian Copyright Act. But, Simpson says, judges usually only hand out criminal remedies in the most extreme cases.

“Costumes are copyrighted works,” says Simpson. “They are artistic works that can't be reproduced in any material form whatsoever and that would include drawing a picture of a Stormtrooper and selling it to someone. But, there are a lot of technically illegal things under the copyright act that no one ever concerns themselves with. The TPP won't suddenly cause the Canadian government to round up a bunch of geeks at a comic convention, put them in a paddy wagon, and throw them in jail.”