WIPR survey: SCOTUS made right call on cheerleading uniform copyright
The US Supreme Court made the right call when it held that decorative elements of a cheerleading uniform may be protected by copyright law, according to WIPR readers.
Nearly three-quarters of respondents to a recent WIPR survey agreed that the court had made the right decision in Star Athletica v Varsity Brands.
The fashion industry breathed sigh of relief when the ruling came out, with the court expanding a “valuable” IP right, according to lawyers who spoke to WIPR.
The Supreme Court granted certiorari to “resolve widespread disagreement” over the proper test for implementing section 101.
In its decision, the court held that a feature incorporated into the design of a useful article is eligible for copyright protection if it satisfies two grounds.
First, the feature must be able to be perceived as a 2D or 3D work of art separate from the useful article.
Second, that feature would have to qualify as a protectable 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.
One reader claimed that it was the right result, but that the court had used “poor reasoning” and provided “unhelpful dicta”.
Another reader was more critical of the decision, adding that simple geometrics have “never been and should not be subject to copyright protection”.
They added that the decorative elements of the uniform were functional, and on that basis protection should have been denied.
For this week’s survey, we ask: Last week, WIPR reported that BrewDog, a Scottish brewery, had tried to enforce its ‘Lone Wolf’ trademark against a pub in Birmingham, UK. Soon after this was reported, BrewDog apologised for its action, tweeting that its lawyers got a “bit trigger happy”. Was this the right call?
