Cosplay 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.