Robot 6

Cosplay is not consent — but a signed release is

PillowCosplay is a relatively new phenomenon in the United States, and it raises a whole raft of issues about boundaries, privacy and proper behavior. Someone else can write a book about that; what I found interesting about the recent cosplay pillow controversy was the set of assumptions underlying it. While this touches on the law, I should say up front that I am not a lawyer and what follows is commentary, not legal advice.

Here’s what happened: At last weekend’s AnimeNEXT, a cosplay photographer was selling pillows with photographs of cosplayers that he had taken. One of the cosplayers, Marie Grey, gave her version of events on her blog, complete with a photo of the pillow.

On Saturday evening, I received a tweet from my friend Carrie with a photo of me in my Dark Phoenix cosplay emblazoned on a pillow. She asked me if I was okay with it. Obviously… I was not. Upon getting my response, she spoke with the vendor (Eric [Pearce] of Imagesolutions), who claimed I had signed an agreement stating he could sell my image whichever way he pleased without asking.

Grey  posed for Pearce and had indeed signed a release, but she believed the document allowed her photo to be used for promotional purposes only. Pearce provided The Outhousers with a photo release he claimed all cosplayers signed, and it is considerably broader than that:

For Consideration herein acknowledged as received, and by signing this release I hereby give the Photographer / Filmmaker and Assigns my permission to license the Content and to use the Content in any Media for any purpose (except pornographic or defamatory) which may include, among others, advertising, promotion, marketing and packaging for any product or service. I agree that the Content may be combined with other images, text, graphics, film, audio, audio- visual works; and may be cropped, altered or modified.

If Grey signed this release, it’s unlikely she would have grounds for a legal complaint — the language is so broad that almost anything would be allowed. However, Grey says this is not the release she signed, and that the one she did sign allowed promotional uses only — not a commercial use such as a pillow that is being sold in a dealers’ room.

The first takeaway, then, is to read any release thoroughly and think divergently, because if Grey had signed the broader release, she would have no recourse. And if everyone behaved properly and as others expected, we would have no need for lawyers.

Taking it a step further, in many cases there is no release: It’s not uncommon for cosplayers to pose for casual photographers, with no paperwork involved. It would be interesting to know what recourse a cosplayer would have if one of those casual photos turned up on a pillow or coffee mug.

It’s also worth noting that your mere presence at a connvention is assumed to be consent to be photographed. Here’s the relevant paragraph from AnimeNEXT’s Code of Conduct:

Acceptance of membership (purchasing of a badge) indicates that the attendee (or parent in the case of minors under the age of 18) has read the rules of conduct outlined and consents to the use of the attendee’s image or likeness in any recording, transmission, or reproduction for the purpose of promoting AnimeNEXT.

Most of the con programs I’ve seen have a paragraph like that somewhere, basically saying that if you go to the con you are agreeing to allow your picture to be taken and published, albeit only for certain uses (presumably pillows that are sold at a profit wouldn’t count).

Legal or not, it’s unsettling to see yourself depicted on a “hug pillow,” and Grey’s outrage is understandable. She was not alone, either, and Eric has now changed his policy and will not make cosplayer photos available on other products to anyone other than the cosplayers themselves.

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Photography 101, in broad terms: You can get away with publishing a photograph without a signed release for journalistic/editorial purposes. If you take a picture of a crowd at the scene of a crime and publish it on the front page, it’s OK. You don’t need everyone in the crowd to sign off on it.

What you CAN’T do without a signed release is use the image of someone in a commercial way, or a way in which the person seems to be endorsing a product. Then you NEED a release. You specifically can’t use a photo of someone you’ve taken to advertise a product without their explicit approval/signed release.

So I can take a picture of someone cosplaying at a convention and include it with my column. That’s covered by editorial/journalistic freedoms. But if I publish a book of my cosplay photography, I’d need signed releases because I’m exploiting those images in a commercial way.

In other words, that guy could only sell those pillows if she signed a release giving him the OK to sell that picture of her. In this case, what’s up for debate is what she signed…

For more info:

http://digital-photography-school.com/model-releases-a-primer
http://kelbytraining.com/course/jack_ed_model_release/

And, yes, it is a bit of a gray area with lots of shades. (You may not need a release if you classify it as “art” in some cases. I don’t think the pillow would qualify as art, though.) But, to play it safe, get the release…

Its the 21st Century, kids. Be careful out there.

A body pillow of a fictional character? Well, kinda creepy, but whatever. Body pillow of a real life person? Super creepy.

Isn’t it illegal for them to sell that pillow anyway unless they license the character from Marvel?

Could we MAYBE have picked a headline that’s less “rape”-infused. I mean, the whole thing is a play off the rules of consent for sex. I went into this thinking “Cosplay is not consent for sex but a signed release is,” which is pretty bad.

Read what you sign. End of story.

It’s hard because nowadays any person or company can have you read a contract, then take the front and last pages with your signature and “BOOK-END” them onto contract with different clauses than the ones you read/agreed to and present THAT contract in court. It should be made mandatory law that every single page f a contract require signature to be validated. The law on that needs to change.

Cosplay is “relatively new” in the US? At least as far back as the 1970’s, people (mainly women) have been cosplaying as Star Trek characters at the earliest Trek conventions and characters Red Sonja at comic conventions! I think it’s might be more fair to say that it’s just become more mainstream as geek culture itself has become more mainstream, but it’s been there for about forty years at least!

There are iPad/iPhone apps with model release contracts on them that allow the model to sign it on the screen and then push a button to have a copy of it emailed directly to the model. That would help, too. Of course, an unscrupulous scummy person with a camera can still make up all sorts of lies and tie things up in court for a long time, if they really wanted to.

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