supremely copyrighted —

Cheerleading company can get copyrights, pursue competitors, Supreme Court says

The high court ponders copyrighted uniforms, Van Gogh, and cat-shaped lamps.

Cheerleading company can get copyrights, pursue competitors, Supreme Court says

The Supreme Court issued a 5-2 opinion (PDF) today allowing cheerleading uniforms to be copyrighted. The case, Star Athletica v. Varsity Brands, is expected to have broad effect in the fashion world and beyond. A group of 3D printing companies had also asked the high court to take up the case, asking for clarity on how to separate creative designs, which are copyrightable, from utilitarian objects that are not.

The case began when Varsity Brands, the world's largest manufacturer of cheerleading and dance-team uniforms, accused Star Athletica of infringing its copyrighted designs. Star Athletica fought back in court, saying the chevrons and stripes on the uniforms had a utilitarian function—namely, to identify cheerleaders as cheerleaders. Noting that Varsity Brands had sued or acquired several other competitors, Star's lawyers complained that Varsity's aggressive litigation led to high uniform prices, "to the detriment of families everywhere."

The district court sided with Star, saying the designs couldn't be separated from the uniform's utilitarian function. But a panel of judges at the US Court of Appeals for the 6th Circuit disagreed, saying there was no utilitarian need for stripes and chevrons and that "a plain white cheerleading top and plain white skirt still cover the body" and allow for jumps, kicks, and flips.

Star asked the Supreme Court to take the case, saying that between circuit courts, the US Copyright Office, and academics, there were "at least nine different tests" to separate utilitarian content from what is copyrightable. Star was aided by an amicus brief (PDF) from 3D printing companies Formlabs, Matter and Form, and Shapeways. The 3D printing companies were seeking legal clarity on 3D printed objects that "combine utilitarian and artistic elements in complex ways." In May, the high court agreed to take up the case.

Separation anxiety

The majority opinion, written by Justice Clarence Thomas and joined by four others, holds that when a design can be "identified and imagined apart from the useful article," it is eligible for copyright protection. In their view, since the cheerleading designs could exist separately from the uniform—say, as a painting—it's fine to copyright them. The situation isn't too different from "a design etched or painted on the surface of a guitar" or "a fresco painted on a wall."

The majority rejected arguments by Star Athletica suggesting a test in which judges measure the likelihood that the "pictorial, graphic or sculptural feature would still be marketable" without the utilitarian function.

"Neither consideration is grounded in the text of the statute," Thomas explained.

Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, and Chief Justice John Roberts all signed on to the majority opinion. Justice Ruth Ginsburg agreed with the majority's conclusion but filed a separate opinion, arguing that Varsity's designs are "standalone pictorial and graphic works" and there's no need for a "separability inquiry" at all.

Justice Stephen Breyer wrote a dissenting opinion, joined by Justice Anthony Kennedy, arguing that Varsity's design features could not exist "independently" from the utilitarian aspects of the uniform. If the design itself is nothing more than a picture of the useful article, then it isn't. Looking at designs like Varsity's design 078, pictured above, "they look like pictures of cheerleader uniforms, just like Van Gogh's old shoes look like shoes... I do not see how one could conceptualize the design features in a way that does not picture, not just artistic designs, but dresses as well."

If one were to "imaginatively remove the chevrons and stripes as they are arranged," and put them on a "painter's canvas," then one would have a painting of a cheerleader's dress, wrote Breyer. In Breyer's view, each Varsity design "is not physically separate, nor is it conceptually separate, from the useful article it depicts... They cannot be copyrighted."

When "form and function are one," as Frank Lloyd Wright said great industrial design is, then designers should get 15 years of protection through a design patent, Breyer suggested. But "Congress did not intend a century or more of copyright protection," he states.

The majority rejected that approach, saying that just because the decorations "retain the outline of a cheerleading uniform" when separated, it doesn't prevent them from getting a copyright. The majority opinion points out that "artwork printed on a t-shirt" can unquestionably be copyrighted, and they don't see the cheerleading uniforms as particularly different.

The Council of Fashion Designers of America, a trade group representing more than 500 fashion designers, will be pleased with today's result, since the group filed an amicus brief (PDF) supporting Varsity Brands and denouncing "fashion design piracy." The brief argues that new technologies like "robotic manufacturing, digital photography and video, [and] 3D printing" have left fashion designers "increasingly vulnerable to copying by 'fast-fashion' retailers and manufacturers."

"The fashion industry can breathe a huge sigh of relief," said fashion lawyer Helene Freeman, a partner at Philips Nizer, in an e-mailed statement to Ars about the case. "Not only did the Court uphold the Sixth Circuit’s judgment that the designs of the cheerleading uniforms were separable, it greatly simplified and expanded the two- and three-dimensional features of useful articles that can qualify for copyright protection.”

Channel Ars Technica