I am interested in getting into cosplay photography, and selling collections of prints of the subjects, but the waters seem a little muddy surrounding the whole scene, and I am trying to wrap my head around what I can and cannot do legally.
I have been searching and reading a lot of forum posts and articles revolving around the subject, but I can't seem to find a definitive answer.
In some cases, I see people saying that selling a print of say, someone cosplaying as "Batman", in a homemade costume, could be classified as copyright infringement.
Now, clearly if someone is cranking out derivative works of a "Batman" costume and selling them, they are infringing copyright, especially if they are branding them AS "Batman" costumes. But taking a photo of someone in said costume, and selling it as a "photo of a cosplayer", is that in the same boat?
Here is what really makes me wonder. If you look up "Batman" for example on any stock photography website, they are in fact selling photos of cosplayers dressed as Batman, Joker, etc, as well as several other Batman themed photos such as the spotlight with the bat logo on it. Some of them are more candid type of photos, with them posing in front of a convention crowd, and others are studio style photos.
Granted, many of them say "Editorial use only", which is ironic I think, because that doesn't change the fact that, yes, they are in fact selling that photo for a profit. I also see that some of them are being sold without the "Editorial use only" caveat, many of which seem to use a generic name and description. It is questionable, albeit possible as to whether or not those stock photo sites have garnered the rights to sell all of the photos with specific copyrighted material, but I seriously doubt they have garnered the rights to all of the characters they sell photos of. Even if they did, it is questionable as to whether or not the photographers selling them to or on the sites have garnered the same rights.
The main question here I guess is, can I legally sell collections of prints of cosplayers clearly labeled AS "cosplayers", of which some of them may happen to be wearing costumes that resemble trademarked/copyrighted characters? If not, why/how do stock photo sites manage to handle this with seemingly no issue?
The final questions I have is, if it is not legal to do that, where are the lines drawn in respect to copyright infringement and cosplayers? Is a "female" variant of something that sort of resembles Optimus Prime crossing the line?
Would I need to hire an attorney to sift through photos and determine which ones are crossing the line, and which are legally acceptable to sell?
Would I need limit the collections to cosplayers who have created their own character/costume free of trademark, and simply get them to sign off on its use?
Edit: I should also highlight the fact that there are books and magazines dedicated to cosplayers, which I presume could fall under the "editorial" category. Is that fair use? If that is the case, could simply gluing a collection of the prints with a writeup about the cosplayer on the backs qualify as "editorial", "fair use", and legal in respect to copyright?
Thanks for any info you can provide.