With the U.S. Supreme Court recently deciding in the Star Athletica v. Varsity Brands case that graphic elements on cheerleading uniforms can be protected under Section 101 of the Copyright Act, a conversation has emerged among designers and fashion experts, wondering how the ruling may impact the ever-growing industry. Hillary Kane, an adjunct associate professor of law at Southwestern Law School and Of Counsel at altView Law Group LLP, discusses the concerns of many about this case and its connection to Entertainment Law in this Q-&-A:
Question—Based on your expert knowledge, which segments of the fashion industry do you believe will be most affected by this ruling? What are the positive and negative effects of the decision?
Answer—I am very resistant to lumping cheerleading uniforms into what most of us consider fashion. Fashion at its finest involves high levels of training, creativity, innovation, and passion. A cheerleading uniform? Not so much. It is very likely that the designs in questions will not be sufficiently original to qualify for copyright protection after they are “imaginatively separated” from the uniform using the new test.
The many attempts to expand copyright protection to fashion design have failed. The Supreme Court was very careful to emphasize that its ruling was not extending copyright protection to clothing. Maybe we should just accept this and move on? All the Varsity ruling does is establish the test all courts should apply to determine if the design elements on a uniform are copyright worthy independent from the garment.
Next fall, I will be substituting Conceptual Separability with Imagined Separability and working through the new test in my Fashion Law course. I am not sure the result in this case would be different applying another one of the prior nine to 12 tests, now superseded.
The fashion industry segment most likely to be affected is cheerleading uniforms, and perhaps other types of uniforms. Now, instead, of being well-settled that there is no copyright protection for any uniform elements, companies have a new basis on which to sue each other. It may get incredibly complicated. What happens when a university claims it has trademark rights in a design Varsity tries to copyright? (There is a U.S. Fifth Circuit Court of Appeals trademark case that speaks to this: Louisiana State University v. Smack Apparel Co.)
It is great material for a law school exam, but not likely to lead to anything other than lawsuits in real life. (more…)