Justices zip up a fashion copyright case

High court, in novel 6-2 ruling, extends legal protection to stripes, chevrons, zig-zags that adorn a major makers’ cheerleader uniforms

The three women donned dapper black for the colorful discussion. Their four male colleagues also appeared in sober, knee-length, noir-dominated attire. After weeks of chatter no doubt about stripes, chevrons, zig-zags, the sculpture of Marcel Duchamp, and multi-dimensionality in design, justices of the highest court in the land recently had their final hurrah in a battle over cheerleader gear, copyright, and fashion.

The U.S. Supreme Court has ruled 6-2 that graphics elements on uniforms designed by Varsity Brand Inc. (“Varsity”) can be protected under section 101 of the Copyright Act. Sis, boom, bah: That means Varsity now gets to pursue its infringement claim against Star Athletica, Inc., (“Star”). But who else might be cheering or jeering (in Bronx fashion) this decision, unusual even at a court that this term also has pondered the rights of kids and Wonder dogs.

Appellate court puts justices in stitches

Ask many intellectual property experts and their reflexive response about American courts and fashion design may turn to trademark, dismissing largely out of hand the notion that copyright has a major role. But leave it to the appellate courts in the tradition-bound, sports crazy Midwest to get high court justices in stitches over cheerleader outfits.

A large part of the Star and Varsity case required jurists to thread the needle in creating an appropriate test of when a useful article (like a piece of clothing) has a feature that can be copyright protected and when it can’t be. Many clothing copyright cases got about as close to setting and even clarifying precedent as a Hollywood starlet wearing a red carpet gown cut from a Simplicity pattern. Not near at all, in other words. Lawyers seemed to have stitched up the dispute over whether garments’ decorative elements were ornamental or utilitarian, whether they could be protected or not. The trial court in Varsity declined to cut against the legal fabric’s grain, ruling in favor of Star.

But judges on the U.S. Court of Appeals for the Sixth District made a bias cut, reversing the trial court and finding that elements on cheerleader uniforms, such as stripes, chevrons, zigzags, and color blocks, were more than just pretty and intrinsic parts of a utilitarian item. Instead, the appellate judges said these features, incorporated into the design of a useful article, could be eligible for copyright protection if they could be  (1) perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a pictorial, graphic, or sculptural work that could be protected–on their own or fixed in some other tangible medium of expression (if imagined separately from the useful article).

Lighting the way

To illuminate their fashion-forward thinking, the appellate judges, including the justices, pondered camo patterns, and especially table lamps, and their parts, specifically their bases. If a lamp had figurative sculpture at its bottom, under that floppy pink shade, right, couldn’t the design be multi-dimensional, be separated from the light, and then be protected by copyright? OK, who cares if the figurine might be so ugly that it might only fit in grandma’s living room. …

Varsity, meantime, owns more than 200 copyright registrations for decorations that are part of cheerleader uniforms, which it has designed, made, and sold. But could the arrangement of its designs’ lines, chevrons, and colorful shapes win intellectual property protection? Star thought the items’ “separability” was not an issue and an analysis of this topic might be legally irrelevant: its view was that decorations are elements of and not on useful articles. The high court decided the some designs could be separated. Varsity had applied them to other media of expression, notably other kinds of clothing. The justices insisted that protectable clothing elements needed to identifiable as pictorial, graphic, or have sculptural qualities. If moved and considered on other items or mediums, the features’ designs need to retain their colors, shapes, stripes, and chevrons, and must qualify as “two-dimensional [at least] works of art.”

Got all these legal abstractions sewn up in your mind? Baste in this twist, then: Justices also noted in a footnote that Varsity and other makers cannot keep others from putting out clothes that are identical to theirs in shape, cut, and dimensions. Clothing itself, after all, is just utilitarian and most of it can’t be copyright protected. They don’t call it the rags trade for nothing. Just watch, though, when makers gussy up goods with design elements. Fashionistas will be trying on and taking off different possible interpretations of the court’s ruling in this clothes case for awhile, and there are a least five takeaways (click here).