cheerleader uniform

Cheerleading uniforms could find their way onto many a designer mood board soon but not for the pleats.

Copyright litigation between uniform manufacturers Star Athletica and Varsity Brands is set to end with a decision from the U.S. Supreme Court, expected as soon as this week, and depending on which side the justices take, it could mean real changes to the way apparel manufacturers, brands and designers think about protecting and even making their goods.

The case stems from allegations by Varsity that Star Athletica used several two-dimensional design elements like stripes and chevron patterns that belonged to Varsity through copyright, but judges at the federal level came out split on whether such aspects of apparel — long considered a “useful article” immune to copyright — should be protected.

While a group of designers including Jack McCollough and Lazaro Hernandez of Proenza Schouler, Narciso Rodriguez and Maria Cornejo, among others, have sided with Varsity and the idea of copyright protection for design elements, the justices have been skeptical.

“For 100 — and more than that — years, the fashion industry has not enjoyed copyright protection,” Justice Stephen Breyer said during October arguments. “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.”

Christopher Buccafusco, a professor focused on intellectual property at Cardozo Law School in New York, is squarely on the side of Star Athletica in thinking the elements claimed by Varsity are not subject to copyright, but that didn’t stop him from explaining what the imminent ruling will mean for the apparel industry, whichever way it goes.

WWD: What’s your overall impression of the case in terms of its potential effect in the apparel industry?

Christopher Buccafusco: I think it could be substantially impactful, depending on what the court does. It could impact the effect of designers already claiming two-dimensional aspects of their designs. The stripes and chevron and colorblocking at issue here are there for different purposes — partly to look pretty but partly because, in uniform design, you sew it inside out to prevent chafing. The stripes, for instance, are there to cover the seams that would normally be on the inside, so they have a function in a way. Whether that counts as a matter of copyright law is a different story and part of what the justices will determine in this case.

WWD: This is billed as the first time the high court has considered copyright for apparel, but has it considered any other related issue that affected the industry?

C.B.: Not for a long time. Much of this arises from a long ago case, Mazer v. Stein, and that decision came down in 1954. In that case, the Supreme Court said, something along the lines of, copyright isn’t just about the artistic elements, it can be about design.

WWD: What would an outcome here in favor of Star Athletica mean for the industry?

C.B.: I think it’s going to leave it hard to protect much of fashion design with copyright anymore, but how much is really going on anyway? I think Varsity is one of the few apparel companies even looking to copyright anymore. Many other companies that do this sort of two-dimensional design, they look to design patents and trademark law. If Star ends up winning, it will essentially close the copyright door to designers and apparel companies.

WWD: What would an outcome in favor of Varsity mean?

C.B.: That, I think, could mean the field is more open, substantially more open, than we realize. Designers could be looking to copyright and to protect the ways a garment makes a wearer look — more slender or broader-shouldered or whatever. Designers might start rushing in to claim a copyright because it’s easy to do and basically free.

WWD: On the more technical side, why is clothing considered a “useful article” under copyright law when appearance and design are such a big factor?

C.B.: With copyright law, you need to understand the relationship of copyright with the other areas of intellectual property. One of the things the “useful art doctrine” is doing is attempting to channel away from copyright something that should be under another patent regime. The reason for the difference in the areas is the law’s anxieties about competition and how that impacts cost. So, the doctrine exists to say other sorts of objects, where form and function are closely married, they deserve to be elsewhere in patent law, like design or trademark.

“Useful art” exists to isolate only those works that have a purely aesthetic component, one that exists purely for its own benefit. If you think about garment design — the hem line, the cut of the sleeve — they’re beautiful, but they’re also functional. The aspect of the cut is simultaneously functional and aesthetic, so the doctrine says design patent law is the place for you. The only thing that should fall under copyright law is something like Mickey Mouse on a T-shirt.

WWD: How would you advise designers, let’s say a young designer that’s come up with a lot of proprietary design elements, to go about protecting their work from copycats?

C.B.: Many of them, I think, already very successfully use trademark and branding, which often do a very good job of signaling to people: this is a smart and creative person that’s coming up in the world. If you’re creating clever stuff, sure, you may get knocked off, but someone probably notices that stuff. And it’s not important that everyone notice but that the right people notice.

Let’s say you’re an up-and-coming chef and someone steals your dish, as long as The New York Times knows it was yours, and they give you the press, that’s what gets you the investment in a restaurant or a book deal. Those are the longer-term stakes.

WWD: But for larger, established brands that are in high demand, it becomes more of a financial issue, right?:

C.B.: You see these large companies do two things to protect their interests: trademark and branding. They don’t just use trademark protection, they make it a design element, right. If you think of a Louis Vuitton bag, maybe with a rounded design, you’re not just buying the shape, you’re buying the shape and the logo. One of the things designers do now is they switch to things that are protected [under trademarks and patents]. There is a lot more use of design patents now. For a long time, it was thought that they were essentially useless and a very slow process to get. But a case like Apple v. Samsung, which saw Apple walk away with however many millions over the shape of a phone, not the functionality, people are realizing the value and that it’s actually worth the wait. Maybe not for a single dress that’s going to be in store for a season, but in that case, what’s the use of intellectual property at all?

[Ed note: The damages verdict in Apple v. Samsung was reversed by the Supreme Court in December and sent back to an appeals court for further analysis.]

WWD: Do you have any predictions on the outcome of Star Athletica v. Varsity?

C.B.: It’s hard to say. There are a couple of justices that seem, based on their voting history, to maybe lean one way or another. Justice [Ruth Bader] Ginsburg is partial to fairly expansive readings in authors rights, for example. Justice [Stephen] Breyer is more anxious about that. Justice [Sonia] Sotomayor used to work for a number of fashion companies when she was in private practice. So I really don’t know how it’s going to turn out.

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