SCOTUS hears cheerleader copyright case, justice gives fashion tips
The US Supreme Court heard arguments yesterday over whether a cheerleading outfit can have copyright protection in the Star Athletica v Varsity Brands case, with one justice giving fashion tips.
Varsity Brands, which produces athletic gear, sued clothing company Star Athletica, claiming that cheerleader uniforms sold by Star Athletica were “substantially similar” to its own.
Following a legal dispute between the pair, the Supreme Court must answer the following question: “what is the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act?”
The justices focused on the broader issues in the case, including the real-world impact on the fashion industry.
“For a hundred and more-than-that years, the fashion industry has not enjoyed copyright protection,” said Justice Stephen Breyer.
He added: “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 Sonia Sotomayor told William Jay, a Goodwin Procter partner who represents Varsity, that a win for Varsity could kill the knock-off industry.
“You're killing—you're killing knock-offs with, with copyright. You haven't been able to do it with trademark law. You haven't been able to do it with patent designs,” she said.
Sotomayor said that “we are now going to use copyright law to kill" the knock-off industry, adding: “I don't know that that's bad. I'm just saying.”
Breyer continued to demonstrate his fashion knowledge by saying: “The clothes on the hanger do nothing; the clothes on the woman do everything. And that is, I think, what fashion is about.”
Justice Elena Kagan then interjected with: “That’s so romantic!”
Last week, lawyers told WIPR that the court will have to deal with some “muddy” issues by getting into the “nitty gritty” of the case, which it agreed to hear in May this year.
John Bursch, founder of Bursch Law and representative of Star, said: “We thought the argument went very well for Star Athletica yesterday."
He added that the court clearly understood that Congress did not intend to "extend copyright protection to any feature of a useful article, no matter how creative the feature, that enhances the article’s functionality (like the designs on a cheerleader uniform).
"While it may be appropriate to protect a useful article’s features under a design patent or trademark, it is not appropriate to protect such features with a century-long copyright,” said Bursch.
