The future of copyright protection in fashion may be decided by cheerleading uniforms.
The Supreme Court began oral arguments yesterday on Varsity Brands vs. Star Athletica, a case that may have significant implications for the fashion industry. The nation’s highest court will rule on copyright law on specific designs that are historically emblematic of cheerleading uniforms, namely chevron, stripes and zigzag patterns. The case has fostered discussion about the meaning of intellectual property in fashion and spurred the chief justices to consider legal issues pertaining to design.
Here’s what the lawsuit means for the fashion industry:
Varsity Brands, which is the largest manufacturer of cheerleader uniforms in the U.S. and valued at an estimated $1 billion, is suing competitor Star Athletica for appropriating its signature stripes and chevron designs on its own uniforms. The case will determine whether Varsity Brands should maintain copyright on its classic design or if competitor brands should be allowed to produce similar uniforms on the basis that the featured designs are critical to identifying the outfits as cheerleaders’ dresses.
Two of Varsity Brand’s registered designs under copyright. They have five in total.
In its brief, Star Athletica wrote that, without these patterns, each ensemble it produces will be nothing more than a “ubiquitous little black dress.” In oral arguments yesterday, the company’s lawyer John Bursch asserted that the chevron and zigzag designs hold a utilitarian function of making cheerleaders identifiable. “Congress did not intend to grant a century-long copyright monopoly in cheerleader uniform design,” he argued.
OK, so what’s currently protected?
Existing protocols are fairly lax; while specific fabric patterns and designs are protected under copyright, physical properties of garments, including pockets and necklines, are not fully protected.
But why is the Supreme Court involved?
In 2015, the United States Court of Appeals for the Sixth Circuit in Cincinnati came back with a split opinion over whether the the designs should be copyrighted. However, it agreed that Varsity Brands passed the court’s existing precedent of the “separability test,” which maintains that “the design of a useful article is protectable if it is not dictated by, or necessary to, utilitarian or functional considerations.”
While Varsity claims its two-dimensional designs are separate from the physical dress itself, Star asserts that the patterns are integral to uniform design and maintain a utilitarianism that is essential to the garment.“We don’t contest that Varsity could take these designs and put it on a notebook, put it on a lunchbox, put it on a hat, and no one could copy that. That’s clearly within the subject matter of their copyright. What they can’t do is prevent someone from making the entire uniform.”
What does the fashion industry think about all of this?
The Council of Fashion Designers of America filed an amicus brief, a legal document filed in court by non-contenders with a vested interest in the case, in support of Varsity Brands. The CFDA claims that by ruling with Star, the court would continue to compromise the limited copyright protection against designers and breed a climate that would make them “defenseless against copyists,” according to The New York Times.
Fashion designers, particularly smaller independent artists, are often susceptible to theft, and a rule in Varsity’s favor would establish more stringent protection protocols. Despite the prevention of copycats, Justice Sonia Sotomayor seemed wary about a rule for Varsity.
“You’re killing knockoffs with copyright,” she said. “You haven’t been able to do it with trademark law. You haven’t been able to do it with patent designs. We are now going to use copyright law to kill the knockoff industry. I don’t know that that’s bad. I’m just saying.”
What happens next?
The justices will continue to hear arguments before issuing a ruling that may set a precedent about what constitutes copyrightable fashion designs. As Justice Stephen Breyer noted during yesterday’s oral arguments, slapping copyrights on common designs will not only establish more stringent design protocols for existing brands that share similar styles, but it will also increase costs.
“All women’s clothes have design. All men’s clothes have design. 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,” he said. “Now if that’s … that’s, I think, the thrust of the question, and that is a practical question.”