A lawyer’s take: is Japan going to make cosplay illegal? No.
If you’re a cosplayer, you might have heard that “Japan is going to make cosplay illegal!” — no need to panic. They are not, and especially not for you.
I thought I would stay quiet on the whole matter as I am not a cosplayer and since no cosplayers seemed to react to the news. For some reason, cosplayers are getting worried now, though, so I feel compelled to say something.
For the international cosplay crowds who do not know me at all, let me introduce myself. I am Jussi Kari, a Finnish IT/IPR lawyer with over 10 years of experience working in law. I have specialized in matters where intellectual property and technology intertwine, such as copyright and social media. I have assisted companies and private individuals alike in matters such as copyright licensing, social media platforms with their terms of service, copyright infringement etc. I am also one of the founders of the Finnish anime convention Desucon and its former main organizer. Desucon is one of the biggest anime conventions in Finland and also one of the events where you can qualify for the EuroCosplay Championships, ECC.
So while I’m not a cosplayer per se, I do know what I am talking about. In fact, cases like “cosplay and copyrights on social media” are the sort I have experience in handling. So instead of the very typical “IANAL” acronym (i.e. “I Am Not A Lawyer”) on the internet, I’ll say that I very much am a lawyer and an experienced one at that, and this case is very much up my alley.
But I digress, so let’s proceed.
Is Japan making cosplay illegal? No, and especially not for you
I already said it, but it’s worth repeating: is Japan making cosplay illegal? No, they are not, and definitely not for you.
If you aren’t aware what’s happening, the Japanese government is weighing whether to amend their copyright law so companies can request fees from professional cosplayers. The well-known professional cosplayer Kamui published a blog post on the matter, so you might want to go read it if you haven’t already.
From the perspective of a copyright lawyer who is interested in anime, manga and all things Japanese, this is all very interesting, but from your point of view — the point of view of a cosplayer not living in Japan — this does not change anything. This change won’t affect you in any way.
To explain why, let me give you a short introduction to international copyright law and the Berne Convention.
International copyright law and the Berne Convention
I say “international copyright law”, but in fact, there’s no such thing. Laws are national institutions. So the US has its own copyright law, Japan has its own copyright law, and my home country of Finland has its own copyright law.
Of course, copyright is intangible and content can be copied, sometimes illegally. This is by no means a new phenomenon: international illegal copying was widespread during the 19th century, since it used to be that copyright protection was only granted in the country where a work was created. So, if you created a work in Germany, you got protected in Germany, but if that work was smuggled to, say, France, it had no protection whatsoever. Moreover, even if copyright protection was granted, it was by no means clear that you would get the protection you expected, since every country had its own kind of copyright legislation.
As you can guess, this situation upset quite many people. For this reason, “international copyright law” was created by international copyright treaties which harmonized national copyright laws. The laws were (and still are) national, but they were now based on certain internationally recognized rules and principles. The laws are not identical, mind you: while the basic rules and principles are now the same all around the world, the details may and do differ, sometimes drastically. Anyway, this is why copyright works in similar — though not identical — ways all around the world.
For this discussion, though, we want to look at the Berne Convention. It is one of the international treaties mentioned, originally adopted in 1886. The Berne Convention has been adopted practically everywhere in the world (all except 4 countries which are not relevant for this discussion) and has been updated a few times, the latest amendment being made in 1979. Despite its age, the Berne Convention is one of the most important documents regarding the international aspects of copyright.
For our case here, the interesting part of the Berne Convention is the principle of national treatment, laid out in paragraph 1 of article 5 of the Convention :
“Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.”
What does this lawyerspeak mean? It means that copyrighted works will be protected in each member state by the copyright law of that state. So if I publish a novel in Finland and its copyright is infringed in France, I can sue them in France for violating the French copyright law. The French copyright law will protect me and my work, despite me and my novel being Finnish. Likewise, a Japanese work would be granted the protection of Finnish copyright in Finland, of the US copyright in the US and of the French copyright in France.
This is probably where the misconception of “you can be sued in the US for violating Japanese copyright law, thus if cosplay is illegal in Japan, it becomes illegal worldwide” comes from, since exactly how this system works is by no means simple. But as said, this is a misconception. In fact, it’s quite the opposite: yes, you can be sued in your home country for violating the copyright laws of your country, but not the copyright laws of another country. So if I infringe on the copyright of a Japanese work in Finland, I could be sued in Finland by the Japanese rightsholder for violating the Finnish copyright law, but not Japanese copyright law.
The bottom line is this: If you do not live in Japan, you will not be exposed to a quirk of the Japanese copyright law and thus your cosplay will not be affected. This is the single most important thing you can take from this post. If you remember nothing else, remember this.
Open questions and miscellaneous answers
Of course, for some of you my answer above might not be enough. What if you do live in Japan? What if you regularly travel into Japan for cosplay-related business? What if you sell your cosplay merchandise to Japanese customers online?
Those are all very valid questions and unfortunately I cannot completely answer them. One of the most important reasons why is that we do not know what the Japanese government is planning, and at least I am not knowledgeable enough to say how things will go exactly. Some things I can say, however.
We don’t know the details. As of January 28, 2021, the only thing we know is that the Japanese government is weighing the option of amending their copyright laws in a way to make it possible for the copyright holders to get fees from professional cosplayers for using their intellectual property. From a lawyer’s point of view, this is extremely vague. How would the system work? Who are classified as professional cosplayers? What qualifies as “making money by cosplaying”? What type of fees are we talking about? How big sums are we talking here? What is the process of paying such a fee? Do you have to buy a license beforehand or is it enough to pay afterwards? Will international business be affected? And so forth. We simply don’t know.
The law hasn’t passed yet, and maybe never will. Frankly, and one might say somewhat fortunately, one of the reasons we don’t know the details is that the law hasn’t passed yet. It’s quite typical for governments of democratic countries to ponder, weigh and discuss different options for legislative changes. But quite often those discussions don’t lead to anything else. Now, I’ll readily admit I’m not an expert on Japanese politics or on how often discussions by the Japanese government lead to passed legislation. Maybe they often do, maybe they don’t. Based on my general understanding about politics and legislation, though, my bet would be on “they usually don’t”. If you are an expert on Japanese politics and their legislative processes, feel free to correct me. But as of this moment, I see no reason to be worried.
Only professional cosplayers would be affected. While this is one of those open questions, based on what we know, the “cosplay fees” discussed would only be for professional cosplayers. While this of course is no consolation to those making money by cosplay, pure hobbyists — who to my understanding make up the overwhelming majority of cosplayers — would not be affected in any way. But even if you do profit by cosplay, remember that if you live in a country other than Japan and only do business in countries other than Japan, this won’t affect you in any case.
Storm in a teacup, tempest in a teapot
To summarize, for the vast majority of the people reading this post, the whole “JAPAN IS MAKING COSPLAY ILLEGAL”-thing is nothing more than a storm in a teacup. No, Japan is not making cosplay illegal (although you might have to pay something in some cases) and it doesn’t affect you anyway. And it’s important to remember that the law hasn’t passed yet and maybe never will.
To find out if you should be worried, ask yourself the following questions in order. If you answer “no” to any of them, you have no need to worry.
- Are you a cosplayer?
- Do you make money by cosplaying?
- Do you get revenue from Japan (by e.g. selling merchandise to Japan or making money by cosplay activities in Japan)?
- Do you either regularly travel to Japan or live in Japan?
As I said, if you answer any of these with a “no”, you shouldn’t be worried one bit. If you did, however, answer all of these with a “yes”, then you might want to keep an eye on the situation, especially if you live in Japan. But even if you do, I wouldn’t be that worried as of now, since the law hasn’t even passed yet and maybe never will. Panicking or even getting worried is currently premature. If you do live in Japan, and especially if you have Japanese citizenship, you can most probably participate in the democratic process by contacting your legislator or representative — at least that’s what you could do in any other democratic nation.
So: keep calm and continue cosplaying. Even turn in a profit.
