Supreme Court’s Ruling In Cheerleader Uniform Case Could Lead To Higher Prices For Clothing, Furniture

This morning, the U.S. Supreme Court issued a ruling in a case that involves cheerleader uniforms, but which some critics believe could eventually result in higher prices for everything from clothing to furniture to housewares.

The case, Star Athletica v. Varsity Brands, involves the bigger question of whether a design for a “useful” everyday item can enjoy copyright protection.

As we mentioned when we covered oral arguments for this case back in Nov. 2016, section 113(b) of the Copyright Act excludes “useful articles” from copyright protection.

So, for example, you can copyright the artwork on a shirt, or a dinner plate, but it’s long been understood you can’t just copyright a general overall design of a useful item. Otherwise, one could arguably try to copyright a “black strapless dress” or a “dark blue sport coat” and claim that anyone who creates something similar owes them a royalty.

For truly unique useful items, there is the option of protecting intellectual property via patent, but patents are usually more difficult to obtain and the protection offered is notably shorter than copyrights, which can now last for more than a century.

In 2010, a uniform company called Star Athletica published a catalog of basic cheerleader uniform designs. Competitor Varsity Brands sued Star Athletica, alleging copyright infringement on multiple designs.

As you can see from the below comparison of one allegedly copied design, the two products are indeed similar, but not identical:

And in 2014, a federal court judge sided with Star Athletica, saying the Varsity designs were so typical for what is considered a “cheerleader uniform” that they couldn’t be afforded copyright protection.

But then in 2015, the Sixth Circuit Court of Appeals disagreed, saying that the lower court should have given more importance to the fact that the Copyright Office had granted Varsity’s copyright application on these designs, and that the copyrighted aspects of Varsity’s designs are not intrinsically important to the utility of a cheerleader uniform.

In other words, getting rid of the stripes and decorative stitching on a cheerleading uniform isn’t like removing the steering wheel from a car; it’s more like removing a hood ornament. The uniform without the copyrighted aspects still functions — and is still generally recognizable — as a cheerleading uniform.

And so the case went before the Supreme Court, which today issued a 6-2 opinion [PDF] in favor of Varsity.

The majority decision held that since the collected graphic feature — the stripes, piping, and whatnot — of a cheerleader uniform would enjoy copyright protection on its own if it were presented as a non-utile piece of artwork, then that feature still merits copyright protection when applied to a useful item, like a cheerleader uniform.

Writing for the majority, Justice Clarence Thomas (who didn’t ask a single question during oral arguments), points out that “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.”

Likewise, notes Thomas, if you then applied that same surface decoration to another medium, you would be replicating the decoration, but you wouldn’t be transforming anything else into a cheerleader uniform.

Star Athletica had argued against this line of thinking, explaining that those design elements — even when removed from the uniform — would still carry the distinct shape and outline of the uniform. The SCOTUS majority was not convinced.

Retaining the shape of the uniform is “not a bar to copyright,” explains Justice Thomas. “Just as two-dimensional fine art corresponds to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article on which it is applied. A fresco painted on a wall, ceiling panel, or dome would not lose copyright protection, for example, simply because it was designed to track the dimensions of the surface on which it was painted.”

The majority points out that U.S. copyright law protects designs on useful items regardless of where they first appeared. The Supreme Court’s 1954 decision in Mazer v. Stein held that a statuette of a dancer that was first designed to be used as a lamp base still enjoyed copyright protection against people selling replicas of the same statuette outside the context of a lamp.

One of the big concerns raised by consumer and free speech advocates who supported Star Athletica is that a ruling in Varsity Brand’s favor would open the door to people claiming copyright on every article of clothing imaginable and then trying to claim monopolies of 100 years or more on those items.

Justice Thomas tries to allay those worries by noting that the ruling only applies to decorative features placed on a useful item, not to the underlying design of the useful item.

“To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric,” he writes. “Even if [Varsity] ultimately succeed in establishing a valid copyright in the surface decorations at issue here, respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear. They may prohibit only the reproduction of the surface designs in any tangible medium of expression — a uniform or otherwise.”

During oral arguments, Justice Stephen Breyer voiced concerns about the potential for a slippery slope that would lead to a situation where “any good designer or lawyer could go and take any dress or suit, just about, and produce a picture that looks very much like that and then sue the companies that use the same dress or style.”

Thus, it’s of little surprise that Breyer wrote the dissenting opinion in this case, making the argument that the decorative features of the Varsity designs could not be copyrighted because they be “cannot be perceived as two- or three-dimensional works of art separate from the useful article.”

Breyer points to the images provided to the Copyright Office by Varsity, noting that the company only submitted “pictures of cheerleader uniforms. And cheerleader uniforms are useful articles.” The company did not, per the dissent, copyright a piece of artwork and then apply it to a uniform, nor is Varsity taking that design from the uniform and putting it on other objects.

“Can the design features.. be physically removed from the article (and considered separately), all the while leaving the fully functioning utilitarian object in place?” asks Breyer. “If not, can one nonetheless conceive of the design features separately without replicating a picture of the utilitarian object? If the answer to either of these questions is ‘yes,’ then the design is eligible for copyright protection. Otherwise, it is not.”

Breyer points to a number of useful items that began as three-dimensional designs but were denied copyright: measuring spoons shaped like heart-tipped arrows; candleholders shaped like sailboats; and wire spokes on a wheel cover.

“None of these designs could qualify for copyright protection that would prevent others from selling spoons, candleholders, or wheel covers with the same design,” reads the dissent. “Why not? Because in each case the design is not separable from the utilitarian aspects of the object to which it relates.”

The dissent concludes by saying that overlooking the inherent three-dimensional aspect of Varsity’s claim and treating it as no different than a printed design on a bolt of cloth, the majority has “lost sight of its own important limiting principle. One may not claim a copyright in a useful article merely by creating a replica of that article in some other medium, such as in a picture. That is to say, one cannot obtain a copyright that would give its holder any rights in the useful article that inspired it.”

Breyer was joined in the dissent by Justice Kennedy. Signing on to Thomas’s majority opinion were Chief Justice Roberts, and Justices Alito, Sotomayor, and Kagan. Justice Ginsburg concurred with the majority’s ultimate conclusion but filed her own opinion.

One question SCOTUS doesn’t really address, as it’s not a matter of copyright law, is how this ruling could affect the price and availability of consumer goods. Despite Thomas’s explicit statement that this ruling only applies to the decorative, non-essential design features of the uniforms. Some contend that today’s decision could end up being a big loss to consumers.

“This ruling potentially expands copyright in all sorts of industries like fashion and industrial design,” says Charles Duan, Staff Attorney at Public Knowledge, one of the organizations filing an amicus brief in this case. Duan says such an expansion could “very well could ultimately lead to higher prices and less consumer choice in many goods.”

The longterm effects remain to be seen, but we can certainly expect to see an increase in companies applying for copyrights related to useful items; hopefully this does not open the door to opportunists who try to abuse the system by claiming copyright on large swaths of products.

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