By now it’s hard to say anything new about the U.S. Supreme Court victory of Varsity Brands in the STAR ATHLETICA, L.L.C. v. VARSITY BRANDS, INC. copyright infringement lawsuit.
If you don’t know the case it’s fairly straightforward: Varsity Brands has over 200 copyright registrations for two- dimensional designs (lines, chevrons, and colorful shapes) used on the surface of the cheerleading uniforms that they design, make, and sell. Varsity sued Star Athletica, who also markets cheerleading uniforms, for copyright infringement. Star won in District Court on theory that the designs were ineligible for copyright protection. Varsity won on appeal to the Sixth Circuit who held the graphics could be “identified separately” and were “capable of existing independently” of the uniforms qualifying for protection under the U.S. Copyright Act.
Justice Thomas writing for the Court held: “an artistic feature of the design of a useful article is eligible for copyright protection 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 in some other medium if imagined separately from the useful article.”
What seems plain and simple on its face may prove otherwise. The Star Athletica decision is simply the jumping-off point for future controversies regarding the existence and scope of protection for fashion designs and concepts. While the Court does note the commercial aspect of the situation, “two- dimensional designs—consisting of various lines, chevrons, and colorful shapes—appearing on the surface of the cheerleading uniforms that they design, make, and sell,” little is made of this fact elsewhere in the opinion. Given the $2.4 Trillion global value of the Fashion Industry, I suspect the case will form the basis of many IP enforcement cases soon to come.
