Star Athletica, LLC v. Varsity Brands, Inc.

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Star Athletica, LLC v. Varsity Brands, Inc.
Seal of the United States Supreme Court.svg
Argued October 31, 2016
Decided March 22, 2017
Full case name Star Athletica, LLC v. Varsity Brands, Inc., et al.
Docket nos. 15–866
Citations 580 U.S. ___ (more)
Prior history On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit
Holding
Aesthetic designs on useful articles like clothing are copyrightable if they can be separately identified as art and exist independently of the useful article.
Court membership
Chief Justice
John Roberts
Associate Justices
Anthony Kennedy
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Case opinions
Majority Thomas, joined by Roberts, Alito, Sotomayor, Kagan
Concurrence Ginsburg
Dissent Breyer, joined by Kennedy
Laws applied
Copyright Act of 1976
(17 U.S.C. § 101)

Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. ___ (2017), was a Supreme Court of the United States case in which the Court decided under what circumstances clothing designs and other "useful articles" can be protected by copyright law. The Court applied a two-prong "separability" test, granting copyrightability on conditions of separate identification and independent existence. In other words, the designs must be identifiable as art if mentally separated from the utility of the article and those artistic features must also qualify as copyrightable pictorial, graphic, or sculptural works if expressed in another medium.

The case concerned a dispute between two clothing manufacturers, Star Athletica and Varsity Brands. Star Athletica began creating cheerleading uniforms similar to some made by Varsity. The designs with stripes, zigzags, and chevron insignia were produced at a far lower price point than the rival firm's version. Varsity sued Star Athletica for copyright infringement and Star Athletica claimed clothing designs were uncopyrightable.

Background[edit]

Historical copyrightability and Varsity Brands[edit]

At one time, clothing designs were not subject to copyright law, or "uncopyrightable," in the United States. In 1941, the Court heard Fashion Originators' Guild of America v. FTC, which considered the fashion industry's practice of boycotting sale of their "high fashion" works at places that would sell knock-offs made by other companies for lower prices, so-called "style piracy". The court ruled against the Guild, saying that this practice of attempting to create a monopoly outside of the copyright system suppressed free competition and violated the Sherman Antitrust Act.[1] However, outside fashion, Mazer v. Stein established in 1954 that an artistic statue created to adorn a lamp base could be copyrightable separately from the utilitarian lamp under expansions from the Copyright Act of 1909. The statue's mass-production alongside the lamp did not invalidate that.[2]

Another common barrier to copyrightability in the United States is a certain vague threshold of originality that must be met to be eligible for an intellectual property monopoly like a copyright or patent. In 1964's Sears, Roebuck & Co. v. Stiffel Co., the Court agreed with a lower court's ruling that Stiffel's popular lamp design was not original enough to warrant a patent preventing the lamp's sale by Sears, rescinding that restriction and passing the design to the public domain. The Court's opinion indicated that the same logic would apply to an inappropriate copyright.[3]

In the Copyright Act of 1976, Congress changed the copyright law to allow copyrighting aesthetic features of "useful articles,"[4] or "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information."[5] This move was intended to better incorporate the Mazer v. Stein ruling[4][6] while clarifying the difference between the copyrightability of "applied art" and the more traditional, lesser restriction of "industrial design," the overall combination of features, provided by design patents or trade dress. The Act said "pictorial, graphic, or sculptural features" of useful articles were copyrightable only if "separable" from the utilitarian aspects of the design and capable of existing independently of the article.[7] This broad definitional language lead to a proliferation of about ten competing, inconsistent legal tests for that separability.[4][8][9]

Because clothes have both aesthetic and utilitarian features to their designs, they fall under this useful article category; therefore, the shapes and cuts of clothing are not copyrightable. Designs placed on clothing were opened up to the possibility of copyrightability, subject to those tests.[4] Practically, the law was construed to mean that copyrighted two-dimensional designs could be placed on clothing, and fabric pattern sheets could be copyrighted before being cut to make clothing, but an article of clothing's overall color scheme and design could not be copyrighted because it was not capable of existing independently of the final useful article.[10] Some fashion designers bristled under these rules, wondering why other creative industries like films or music were allowed to restrict access to their products with copyright and they were not.[11][12][13] Others used the fashion industry as an example of an industry thriving in the absence of copyright, perhaps in part because of that.[14][15][16]

Nonetheless, Varsity Brands, the largest cheerleading and sports uniform manufacturer in the world,[17][18] could not register copyrights for the designs of their cheerleading uniforms as clothing. Instead, Varsity applied for copyrights on drawings and photographs of those designs[7][19] as "two-dimensional artwork" or "fabric design (artwork)." That design represented in the images would then be applied to the clothing. Following rejections from the Copyright Office, Varsity described the uniforms in extremely specific detail to make the registration appear limited, improving their registration chances. The Office approved[7] over 200[20] of these narrowly-defined copyrights with descriptions like "has a central field of black bordered at the bottom by a gray/white/black multistripe forming a shallow 'vee' of which the left-hand leg is horizontal, while the right-hand leg stretches 'northeast' at approximately a forty-five degree angle." Varsity proceeded to frequently file lawsuits alleging infringement via accusations of very general copying,[7] intended to stop other companies from releasing competing uniforms. Those competitors regarded these lawsuits as frivolous because the claimed designs were so simple.[21]

Star Athletica lawsuit[edit]

The five cheerleading uniform designs involved in the case

Star Athletica was founded in January 2010 as a subsidiary of The Liebe Company. Varsity Brands accused Star Athletica of being created in retaliation for Varsity cancelling a deal with The Liebe Company's sports lettering subsidiary, aided by former Varsity employees knowledgeable about Varsity designs. Later that year,[21] Varsity Brands filed suit against Star Athletica for infringing five of its copyrighted designs for cheerleading uniforms.[22] The Star Athletica designs were not exactly identical, physically or graphically, but Varsity's general description of allegedly copied elements in court filings, "the lines, stripes, coloring, angles, V’s [or chevrons], and shapes and the arrangement and placement of those elements," suited both designs and the case moved forward.[7] Varsity also sued for trademark infringement under the Lanham Act[4] and Star Athletica counter-sued Varsity under the Sherman Antitrust Act for allegedly monopolizing the cheerleading industry,[23] but these portions of the case were dismissed.[4][23]

In 2014, the United States District Court for the Western District of Tennessee ruled in favor of Star Athletica on the grounds that the designs were not eligible for copyright protection. According to Judge Cleland, a design without the distinctive marks like chevrons and zigzags would not identifiable as cheerleading uniforms, so the designs were not separately identifiable. They were not conceptually separable because the marks, if viewed outside the context of the clothing, would have still evoked the idea of cheerleading uniforms.[4][24][25]

The district court's decision was reversed on appeal by the United States Court of Appeals for the Sixth Circuit with the majority of Judge Moore joined by Judge Guy. Firstly, Moore said the district court should have deferred to the fact that the Copyright Office's trained personnel had granted the copyright registrations in the first place. On the questions of the case, Moore evaluated the competing separability tests, but ended up creating a new five-step test for the Circuit's analysis. In short, they found that the designs were copyrightable because the clothes had the utility of being athletic wear and removing the designs did not affect that utility. She said the design could separately identifiable because it could be held "side by side" with a blank dress and there would be no utilitarian difference, and it could certainly exist independently because the individual aspects like chevrons could appear in designs on other clothing items. Judge McKeague dissented because of a disagreement over the application of one of the test's steps. The third step asked the court to determine the useful article's "utilitarian aspects." Instead of the majority's more general assessment of athletic wear, McKeague would have defined the uniforms as clothing the body "in an attractive way for a special occasion;" therefore, the utilitarian and aesthetic features could not be separated to him.[4][26]

Star Athletica filed to be heard by the United States Supreme Court in January 2016. On May 2, 2016, the Court declined to hear arguments about Varsity's designs being sufficiently original for copyright, but granted certiorari "to resolve widespread disagreement over the proper test for implementing § 101's separate-identification and independent-existence requirements."[27]

Amicus curiae[edit]

Over the year between the initial filing and the oral arguments, the case attracted the attention of various interest groups that filed a total of fifteen briefs of amicus curiae.[28] Among the supporters of Star Athletica was Public Knowledge, which helped draft a brief representing the views of costuming groups, particularly cosplayers of the Royal Manticoran Navy and the International Costuming Guild, who were concerned that a ruling in Varsity's favor could endanger their craft, as much of it involved recreating recognizable designs from pop culture.[29][30] The Royal Manticoran Navy then filed a separate supporting brief that emphasized fair use rights in costuming while voicing a concern that allowing these designs to be copyrighted would worsen[31][32] a common characterization of Varsity Brands as a monopolist of the cheerleading industry with 80% market share.[17][32][33][34][35] Public Knowledge was also involved in a brief representing the views of Shapeways, the Open Source Hardware Association, Formlabs, and the Organization for Transformative Works. Their concern was the possibility that copyright restriction would impact 3D printing by making it difficult to share designs or by creating a fiscal incentive for media companies to crack down on derivative works.[15][36] Librarian associations like the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries signed on to this brief to represent constituent libraries' interests in offering access to the technology.[15][importance?] Another group of supporters styled themselves "Intellectual Property Professors."[28][37]

Varsity found support with the Council of Fashion Designers of America, which believed that extending copyright to clothing designs was critical to prevent exploitative copyists and preserve the United States's rapid rate of expansion in the worldwide fashion industry worldwide, representing $370 billion in domestic consumer spending and 1.8 million jobs.[13][21] These interests were shared by the Fashion Law Institute, which advised that a decision to copyright clothing designs would be a proper reading of the Mazer v. Stein ruling's later incorporation in the 1976 Copyright Act.[31][38] Both criticized the "fast-fashion" industry of duplicating expensive designs via increasingly-cheap 3D printing technology without payment to the original creators.[13][38] The Institute spoke highly of "geek fashion," including cosplay, as a burgeoning part of the industry ripe with copyrightable expression.[38] The United States government also supported Varsity.[28][39]

Neutral briefs from the American Intellectual Property Law Association[28][importance?] and similar groups from New York[40] and Chicago[importance?] advocated for and against various separability tests.[28]

Oral arguments[edit]

Oral argument convened on October 31, 2016, Star Athletica represented by John J. Bursch and Varsity by William M. Jay. Eric Feigin also spoke on Varsity's behalf, representing the United States as amicus curiae.[41][42][43]

Star Athletica's lawyers gave the Court examples of how the graphic designs were utilitarian. For instance, the colors and shapes were arranged such that optical effects like the Müller-Lyer illusion deliberately changed the cheerleader's appearance to make the woman appear taller, thinner, and generally more appealing. They considered this very different than applying a pre-existing two-dimensional image to the uniform because the lines for those illusions to work as intended needed to be properly located on properly fitted uniforms.[41] According to them, people often made those sorts of deliberately utilitarian decisions about their clothing to make themselves look better or happier. Justice Ruth Bader Ginsburg, in particular, rejected that argument, citing the fact that the examples presented in evidence were two-dimensional works. In her view, it did not matter that the submitted designs were "superimposed" on three-dimensional uniforms—the designs were submitted in two-dimensional images, therefore the designs were separable from the uniforms and copyrightable. After all, both parties agreed that the physical, three-dimensional uniform's cut and how it physically framed the body was not copyrightable. They were interested in the colors and designs that were, in her view, applied to the uniforms. Chief Justice John Roberts felt much the same and added that the designs did more than sit practically on the body because they sent a "particular message" that distinguished it from a blank dress, namely that they were "a member of a cheerleading squad." His reception of this expression leaned him toward thinking of it as copyrightable expression.[44]

The members of the Court also considered more abstract aspects of the case. For example, it was unclear how a decision in Varsity's favor might affect military-style camouflage patterns and whether or not they could be restricted if fashion designs were copyrightable. Varsity supported the idea of camouflage copyrights, although Justice Elena Kagan pointed out the clear utilitarian function of camouflage patterns: concealment. On the industry side, women's fashion alone was a $225 billion per year concern worldwide. Justice Stephen Breyer speculated that the price of dresses could conceivably double if copyright terms were applied to designs and knock-off brands couldn't compete at lower prices.[44] Kagan, formerly a representative of Fendi in cases brought against knock-offs, wondered aloud if a decision for Varsity would kill those knock-offs brands, although she was not sure if that would be a bad thing.[19]

Breyer also got attention in the media for his aphorism "The clothes on the hanger do nothing; the clothes on the woman do everything. And that is, I think, what fashion is about." Kagan thought the sentiment was "so romantic."[19][41][44]

Opinion of the Court[edit]

Majority opinion[edit]

Justice Thomas delivered the majority opinion, which was joined by Chief Justice John Roberts and Justices Alito, Sotomayor, and Kagan.[4] The Court defined its task as "whether the lines, chevrons, and colorful shapes appearing on the surface of [Varsity Brands'] cheerleading uniforms are eligible for copyright protection as separable features of the design of those cheerleading uniforms."[45]

The opinion relied in part on the court's 1954 decision in Mazer v. Stein, which interpreted a similar provision in the Copyright Act of 1909.[46] The majority set forth the following two-prong test:

[A] feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.[20][47]

Applying this test to the cheerleading uniforms was "straightforward":[47]

First, one can identify the decorations as features having pictorial, graphic, or sculptural qualities. Second, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium—for example, on a painter’s canvas—they would qualify as "two-dimensional . . . works of . . . art," §101. And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents have applied the designs in this case to other media of expression—different types of clothing—without replicating the uniform. The decorations are therefore separable from the uniforms and eligible for copyright protection.[47]

The court only decided whether the two-dimensional designs on the cheerleading uniforms could receive copyright protection under the terms of 17 U.S.C. § 101,[47] and did not decide whether the five cheerleading uniform designs in the case actually met the threshold of originality to receive copyright protection.[48]

Concurrence[edit]

One page of the 11-page appendix to Justice Ginsburg's opinion, which highlighted that the designs were registered with the U.S. Copyright Office as "2-dimensional artwork"

Justice Ginsburg wrote an opinion concurring in judgement—that the cheerleading uniform designs could be protected by copyright—but not joining in the majority's reasoning. For Justice Ginsburg, the court did not need to decide on a separability test the copyrights were not registered for the useful articles of clothing, but instead of pictoral and graphical works that were then reprodiced on the clothing.[4][49] Because copyright protection provided by the Copyright Act of 1976 "includes the right to reproduce the work in or on any kind of article, whether useful or otherwise",[50] the copyright holder of a pictorial, graphical, or sculptural work register a copyright and monopolize the design away from infringers who would reproduce it on their separate useful articles. According to her, there was no need for the court to address the separability analysis issue at all.[4][51] To prove her point, Justice Ginsburg attached to her decision several pages of applications submitted by Varsity Brands to the Copyright Office, pointing to their claimed type of work being "2-dimensional artwork" or "fabric design (artwork)."[52]

In the concurrence's notes, Ginsburg mentioned that she also did not take a stand on whether or not Varsity's designs were actually original enough to be copyrightable, but she did refer to a previous case called Feist Publications, Inc., v. Rural Telephone Service Co. and quoted its conclusion that “the requisite level of creativity [for copyrightability] is extremely low; even a slight amount will suffice."[53]

Dissent[edit]

Justice Breyer, joined by Justice Kennedy, dissented. While he agreed with much of the majority's reasoning, he disagreed with the framing and application of the majority's test to conclude the design was not separable from the uniform's useful article.[54] Breyer also criticized what he considered vagueness in the majority's test. He thought that, under it, "virtually any industrial design" could be considered separable as soon as it was thought of in terms of art, whether via giving it a picture frame or calling the object art like a Marcel Duchamp series.[4][55] He summarized his argument by remarking:

Look at the designs that Varsity submitted to the Copyright Office. You will see only pictures of cheerleader uniforms. And cheerleader uniforms are useful articles. A picture of the relevant design features, whether separately "perceived" on paper or in the imagination, is a picture of, and thereby "replicate[s]," the underlying useful article of which they are a part. Hence the design features that Varsity seeks to protect are not "capable of existing independently o[f] the utilitarian aspects of the article."[56]

The majority opinion believed Breyer's concerns were not a bar to a design's copyrightability. They analogized the uniform's design to a mural on a curved dome, saying that the contour of the dome would not prevent the mural from being copyrightable. They also thought that Breyer's traditional view that a preexisting two-dimensional artwork applied to a portion of the clothing could be copyrighted was contradictory because then the statute would provide copyright restriction to designs that covered part of the clothing surface, but not designs that covered all of it.[57] Ginsburg's concurrence also agreed on the second point in its notes, and referred to the fact that portions of Varsity's claimed uniform designs do appear on other merchandise like t-shirts.[58]

Breyer's approach to the problem was to wonder what "identified separately" meant in the context of the statute. His reading was that, to be separable, the design features either needed to be either physically separable from the article while leaving the utilitarian object functional or else the design features needed to be conceivably separable without conjuring a picture of the utilitarian object in someone's mind. He returned to Mazer v. Stein and applied his reasoning to two lamps, one with a Siamese cat statuette for a pole and one with an brass rod pole and a cat statuette attached elsewhere on its base. When it was elsewhere on the base, it could be physically separable and was therefore copyrightable as a figurine. When the cat was the pole, it couldn't be physically separated, but it could be conceptually separated from the context of the lamp without conjuring the idea of a lamp and was therefore copyrightable as a figurine.[59]

He then considered shoes painted by Vincent van Gogh and turned to an amicus curiae brief filed by "Intellectual Property Professors" that gave examples of what features Congress intended to extend copyright to and which previous case law allowed. Breyer found that copyrighting floral engravings on silverware, carvings in the back of chairs, images on t-shirts were not the same as copyrighting an entire cheerleading uniform design because those examples were conceptually separable while the uniform design was not. He reiterated that van Gogh could certainly have received a copyright to prevent people from reproducing his creative painting, but the case in Star Athletica was an injunction against creating uniforms and Breyer felt this decision would be equivalent to giving van Gogh a design copyright that could prevent other from producing those shoes.[60]

The dissenting justice studied the state of the fashion industry at the time of the decision and believed that it was not in need of further restriction from copyists, and that neither the Constitution's Copyright Clause nor recent Congresses, which had rejected 70 bills to this effect, intended for copyright to cover designs on useful articles. He quoted warnings from Thomas Jefferson and Thomas Babington Macaulay against wantonly expanding copyright monopolies and cited the metrics provided by the amici Council of Fashion Designers of America to show that the fashion industry was doing very well for itself without copyright. Seeing no pressing need to extend the restriction, he was not willing to overstep the bounds of the Copyright Clause, especially when the available design patents afforded fifteen years of restriction and copyright could offer more than a century.[61]

Subsequent developments[edit]

Reactions[edit]

Columbia Law School professor Ronald Mann provided an analysis of the opinion for SCOTUSblog, remarking:

What the court does not state expressly in that part of its opinion is that the standard for determining whether a graphic work (for example) is copyrightable is minimal. ... So once the court has said that any design can gain copyright protection if it would be protectable if placed first on a piece of paper, it really has ensured that all but the subtlest graphic designs will be able to gain copyright protection. ... To put [the Court's application of its test to the uniforms (quoted in the "majority opinion" section above)] more bluntly, once we determine that the designs 'hav[e] … graphic … qualities … [and could be] applied … on a painter’s canvas,' the test for copyrightability is met. ... I am sure that my colleagues who study intellectual property will write at length for years to come about the doctrinal nuances of the court’s discussion of the separability requirement, which seems to me a marked shift from most of the prior treatments.[62]

There was a split amongst Intellectual Property attorneys between those who thought the opinion clarified the law[63][64][additional citation(s) needed] and those who thought it made things more ambiguous.[7][additional citation(s) needed] The Harvard Law Review felt it was an important step towards removing subjectivity from the tests in this area of the law, but worried that it may not fully resolve conflicting lower court rulings because the conflicting majority and dissent were both based on close readings of the statute without enough clearly differentiating examples in the majority to completely discredit the alternative view.[4]

However, whether clear or not, many have noted that Star Athletica was an important case for the fashion industry because it overturned the prevailing wisdom that fashion designs were generally uncopyrightable. The effects of this shift in thought remains to be seen as more designers apply for copyrights, and awareness of this change grows.[63] Particularly, there is speculation regarding negative effect on fashion trends, which involve some degree of copying basic styles among designers throughout the industry.[48][65][66][67] Generic or "knock-off" clothing could cease to exist entirely due to the restriction of the designer brands' designs.[63]

Jeanne C. Fromer and Mark P. McKenna were critical of the ambiguity of the decision, pointing out that the three major stages of litigation resulted in three different majority decisions on three different grounds, with more divergent opinions among the dissents and concurrence. Because Varsity was allowed to define extremely narrow copyright restrictions then sue others including Star Athletica while describing general cheerleading uniforms to the courts, they were concerned that this requirements disconnect would lead to more controversial lawsuits, even outside the realm of useful articles. After all, a model car could be copyrighted as a sculpture, and a drawing of that model could be copyrighted for essentially equal protection, leaving what features of either are actually restricted up for debate because the registration's description can diverge almost entirely from the lawsuit's filing. A problem they identified with the majority opinion in Star Athletica was that, without that foreknowledge, it could be impossible to know what the copyright holder considered restricted or begin a separability analysis to find out if some feature is copyrightable before the copyright holder describes it in a lawsuit, let alone before the second party begins the desired copying.[7]

Sara Benson, a lawyer who agreed with the decision, has wondered if the court's explicit rejection of a copyrightability test that valued artistic effort on the designer's part may harm perception of designers' value to the clients they work for. She mentioned that that test had allowed designers to leverage their creativity for respect and credibility during corporate design processes, and that its removal may have removed some of their negotiating power.[63]

David Kluft of Foley Hoag has noted that this new ability to copyright design elements comes paired with criminal penalties if it comes to light that the elements have any utility. If the entity applying for copyright on the design knew about that utility, that would be considered false representation of a material fact in the copyright registration.[68]

Case resolution[edit]

The case was passed back to a lower court and, in August 2017, the case was settled out of court in favor of Varsity Brands, over Star Athletica's objection, by Star Athletica's insurance company. Star Athletica wanted to press a counter-claim following the Supreme Court's ruling that designs on the uniforms could be copyrightable with an argument that the particular Varsity designs in the case should not be copyrightable due to their simplicity. The settlement precluded that argument and closed the case with prejudice, so the seven years of litigation had firmly concluded.[69][70]

References[edit]

  1. ^ Fashion Originators' Guild of America v. FTC, 312 U.S. 457 (1941)
  2. ^ Mazer v. Stein, 347 U.S. 201 (1954)
  3. ^ Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964)
  4. ^ a b c d e f g h i j k l m "Star Athletica, L.L.C. v. Varsity Brands, Inc." Harvard Law Review. 2017-11-04. Retrieved 2018-07-16. 
  5. ^ 17 U.S.C. § 101
  6. ^ Robert Kastenmeier (1976-09-03). House of Representatives Report No. 94-1476 (PDF) (Report). United States House of Representatives. p. 105. Retrieved 2018-07-21. Section 113 deals with the extent of copyright protection in "works of applied art." The section takes as its starting point the Supreme Court's decision in Mazer v. Stein, 347 U.S. 201 (1954), and the first sentence of subsection (a) restates the basic principle established by that decision. 
  7. ^ a b c d e f g Fromer, Jeanne C.; McKenna, Mark P. (2018-05-30). "Claiming Design". University of Pennsylvania Law Review. 167. SSRN 3186762Freely accessible. 
  8. ^ Ginsburg, Jane C. (2016-09-01). "'Courts Have Twisted Themselves into Knots': US Copyright Protection for Applied Art". The Columbia Journal of Law & the Arts. Rochester, NY. 40 (1). SSRN 2837728Freely accessible. 
  9. ^ Fisher, Daniel (2016-05-02). "Supreme Court Dives Into Copyright Fight Over Cheerleader Uniforms". Forbes. Retrieved 2018-07-21. 
  10. ^ "924.3(A) Clothing Designs". Compendium of US Copyright Office Practices, Third Edition (PDF) (Report). United States Copyright Office. December 22, 2014. p. 41. Retrieved July 11, 2018. Clothing such as shirts, dresses, pants, coats, shoes, and outerwear are not eligible for copyright protection because they are considered useful articles. This is because clothing provides utilitarian functions, such as warmth, protection, and modesty.... Although the copyright law does not protect the shape or design of clothing...designs imprinted in or on fabric are considered conceptually separable from the utilitarian aspects of garments, linens, furniture, or other useful articles. Therefore, a fabric or textile design may be registered if the design contains a sufficient amount of creative expression. 
  11. ^ Kover, Amy (2005-06-19). "That Looks Familiar. Didn't I Design It?". The New York Times. Retrieved 2018-07-21. 
  12. ^ Telfer, Tori (2013-09-03). "Fashion Designs Aren't Protected By Copyright Law, So Knockoffs Thrive as Designers Suffer". Bustle. Retrieved 2018-07-21. 
  13. ^ a b c Brief of Council of Fashion Designers of America as Amicus Curiae, Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017)
  14. ^ Bollier, David; Racine, Laurie (2003-09-09). "Control of creativity? Fashion's secret". Christian Science Monitor. Retrieved 2018-07-21. 
  15. ^ a b c Brief of Public Knowledge, the International Costumers Guild, Shapeways, Inc., the Open Source Hardware Association, Formlabs Inc., Printrbot Inc., the Organization For Transformative Works, the American Library Association, the Association of Research Libraries, and The Association of College and Research Libraries as Amici Curiae, Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017)
  16. ^ Morning Edition (2012-09-10). "Why Knockoffs Are Good For The Fashion Industry". NPR.org. Retrieved 2018-07-21. 
  17. ^ a b Reigstad, Leif (2015-07-21). "Varsity Brands Owns Cheerleading and Fights to Keep it From Becoming an Official Sport". Houston Press. Houston Press. Retrieved 2018-07-21. 
  18. ^ Kees, Laura A.; Shaw, Stephen (2017-03-24). ""Knock-Offs" Beware: SCOTUS Makes a Fashion-Forward Decision". National Law Review. Retrieved 2018-07-21. 
  19. ^ a b c Barnes, Robert (2016-10-31). "Supreme Court hears arguments in cases centering on cheerleading outfits and a goldendoodle service dog". The Washington Post. Retrieved 2018-07-15. 
  20. ^ a b Star Athletica, slip op. at 1.
  21. ^ a b c Smith, Erin Geiger (2016-10-31). "Who Owns Cheerleader Uniform Designs? It's up to the Supreme Court". The New York Times. Retrieved 2018-07-15. 
  22. ^ Star Athletica, slip op. at 2 (quoting 2014 WL 819422, *8-*9 (WD Tenn., Mar. 1, 2014)).
  23. ^ a b Brief of the Respondents (Sep. 14, 2016), Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017)
  24. ^ Varsity Brands, Inc. v. Star Athletica, LLC (W.D. Tenn. Mar. 1, 2014). Text
  25. ^ Tewarie, Shrutih V. (2014-04-30). "District Court Struggles With Copyright Protection For 'Cheerleading-Uniformness'". Mondaq. Retrieved 2018-07-21. 
  26. ^ Varsity Brands, Inc. v. Star Athletica, LLC (6th Cir. Aug. 19, 2015). Text
  27. ^ Star Athletica, slip op. at 1; see also No. 15-866 (docket), United States Supreme Court (last visited April 15, 2017) ("May 2, 2016 Petition GRANTED limited to Question 1 presented by the petition.")
  28. ^ a b c d e No. 15-866 (Star Athletica docket), United States Supreme Court (last visited July 20, 2018)
  29. ^ Brief of Public Knowledge, Royal Manticoran Navy, and International Costumer's Guild as Amicus Curiae, Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017)
  30. ^ Nicholas Datlowe, Cosplay Comes to SCOTUS on Halloween, Bloomberg BNA (October 27, 2016)
  31. ^ a b AFP Relax News (2016-10-31). "The Supreme Court Ponders Costumes and Copyright on Halloween". Yahoo. Retrieved 2018-07-21. 
  32. ^ a b Brief of Royal Manticoran Navy: The Official Honor Harrington Fan Association, Inc. as Amicus Curiae, Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017)
  33. ^ Brief for the Petitioner, Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017)
  34. ^ Pietz, Morgan E.; Maxim, Trevor (2017-04-01). "Star Athletica, LLC v. Varsity Brands, Inc". Gerard Fox Law. Retrieved 2018-07-21. 
  35. ^ Buchanan, Leigh (2016-02-22). "Meet Rebel Athletic, the $20 Million Custom Cheerleading Uniform Startup Living Up to Its Name". Inc.com. Retrieved 2018-07-21. 
  36. ^ Masnick, Mike (2016-07-26). "How A Supreme Court Case On Cheerleader Costumes & Copyright Could Impact Prosthetic Hands And Much, Much More". Techdirt. Retrieved 2018-07-21. 
  37. ^ Brief of Intellectual Property Professors as Amicus Curiae, Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017)
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  45. ^ Star Athletica, slip op. at 4.
  46. ^ Star Athletica, slip op. at 8-10.
  47. ^ a b c d Star Athletica, slip op. at 10.
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  49. ^ Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 580 U.S. ___ (2017), slip op. at 1 (Ginsburg, J., concurring in judgment)
  50. ^ 17 U.S.C. § 113(a)
  51. ^ Star Athletica, slip op. at 2 (Ginsburg, J., concurring in judgment).
  52. ^ Star Athletica, slip op. at 4-14 (Ginsburg, J., concurring in judgment).
  53. ^ Star Athletica, slip op. at 2 (Ginsburg, J., concurring in judgment).
  54. ^ Star Athletica, slip op. at 1 (Breyer, J., dissenting)
  55. ^ Star Athletica, slip op. at 6-7 (Breyer, J., dissenting)
  56. ^ Star Athletica, slip op. at 1 (Breyer, J., dissenting)(quoting 17 U.S.C. § 101)(some internal citations omitted).
  57. ^ Star Athletica, slip op. at 11
  58. ^ Star Athletica, slip op. at 2-3 (Ginsburg, J., concurring in judgment)
  59. ^ Star Athletica, slip op. at 2-4 (Breyer, J., dissenting)
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  61. ^ Star Athletica, slip op. at 7-9 (Breyer, J., dissenting)
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