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In a case heard by the Supreme Court on October 31st this year, Star Athletica, LLC v. Varsity Brands, Inc., basic premises of copyright law was up for dispute. At the heart of this case is a dispute between two manufactures of cheerleading uniforms, Star Athletica and Varsity Brands. Varsity Brands accused Star Athletica of essentially copying their cheerleading uniforms and selling them at a lower price. For their side of the argument, Star Athletica counters that the cheerleading uniforms are not protectable by copyright because they are functional rather than expressive. For that matter, Star Athletica claims the Supreme Court should adopt a precedent where all garments are exempt from copyright protection.

This argument revolves around a basic premise of copyright law that says copyright protection is only offered for expressive content of work, not functional ideas or objects. This principal was instantiated in Mazer v. Stein, which involved a statuette of a woman that was intended for, and was used as, the base of a lamp.   The Court held that the Copyright Act protected the expression of the statuette, but not the idea of using a statuette as a lamp base. Therefore, others could make statuettes used as bases of lamps, however they could not copy that exact expression of a women as a lamp base that was protected by copyright. This same principal is at issue in the present case.

Star Athletica argued there should be a blanket presumption against copyright protection for garments. According to their argument, if the design features on a garment cannot be conceived of separate and apart from the garment itself, then there should be no copyright protection. In the case of cheerleader uniforms, the design elements such as stripes, chevrons, and assorted lines, are essential to the use of the garments as cheerleader uniforms, and therefore the design elements are not conceptually separable from the garment.

In response to this, Varsity Brands essentially agrees with the premise laid out by Star Athletica but arrives at a different conclusion. Varsity Brands argued that design elements are conceptually separable if it can exist in a separate medium separate and apart from the garment itself. Graphic designs for example, can exist on a sheet of paper, therefore are by definition separable from the garment, and therefore a blanket presumption against copyright protection for garments is improper. A more difficult case would be a 3D design, which cannot exist apart from its shape, however any 2D design would not be subject to this issue. Therefore, according to Varsity Brands, if a design is 2D it is by definition separable from the article on which it exists, and therefore should not be excluded from copyright protection

A ruling in favor of Star Athletica would potentially greatly impact the fashion industry. Many designers and brands rely on copyright protection to protect things such as original fabric prints, the exact type of protection Star Athletica is attempting to curtail. On the other hand, a ruling in favor of Varsity Brands would help solve a long-running issue in the fashion industry, providing a single test for what is and is not copyright protectable. In other words, a ruling in favor of Varsity Brands would help establish a clear process for determining what is conceptually separable v.s utilitarian. The ruling in this case should be closely watched by anyone in the clothing industry.

Cheering for Copyright:  The Supreme Court Hears Consequential Dispute over Cheerleader Uniforms