The Supreme Court on Halloween appeared reluctant to rule that an apparel company can copyright stripes on cheerleading uniforms.
Star Athletica, a much smaller apparel company, claims Varsity's copyrights are invalid because a uniform is a “useful article” that can’t be copyrighted under federal law.
Only “original pictorial, graphic, and sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article” qualify for such protections.
Because its designs can be placed on other items, Varsity Brands claims they qualify.
But Chief Justice John Roberts seemed to disagree.
“If you take the design of a particular cheerleading uniform and put it on the lunchbox or the computer cover, yes, those can be copyrighted,” he said. “But because it is the design that makes the dress a cheerleading uniform, you can't separate – you can't copyright the design applied to that functional article.”
Varsity Brands, the world’s largest cheerleading apparel manufacturer and distributor, further argued that its designs meet the criteria of an original graphic because they start off as two-dimensional sketches drawn by graphic designers.
Justice Stephen Breyer, however, asked whether the court, if it were to side with Varsity Brands under that argument, would be allowing every design of a useful article to be copyrighted. He wondered if drawing a two-dimensional picture of a piece of a women's dress would make it copyrightable.
“For a hundred and more-than-that years, the fashion industry has not enjoyed copyright protection. It is an industry on the women's side, I believe, that $225 billion, at least, worth of clothes are sold every year,” he said.
“If suddenly in this case we say that dresses are copyrightable, and they are because every one of them has some design, perhaps we'll double the price of women's clothes."
Justice Ruth Bader Ginsburg, meanwhile, wanted to know how to determine when the design makes the item a useful article.
“What do you do about shape?” she asked Star Athletica’s attorney, John Bursch.
Bursch explained that the stripes and Vs on a cheerleading uniform are there to make the cheerleader appear taller and slimmer.
If you put them on a lunchbox, he said, it doesn’t make the lunchbox look narrower.
It’s fitting that oral arguments fell on Halloween, as the case has attracted the attention of the International Costumers Guild.
The nonprofit joined Public Knowledge and other advocacy groups in an amicus brief supporting Star Athletica.
“Individual consumers are fast becoming some of the most productive creators contributing to the public storehouse of innovations. But in making such contributions, those consumers depend on rights to borrow, adapt and improve existing concepts in areas of useful articles generally viewed as outside the domain of copyright,” their brief said.
This story was updated at 4:13 p.m.