The Supreme Court yesterday heard arguments about cheerleading costumes that could have a far-reaching impact not only for how the fashion industry does business but also for consumer choice and the price of clothing at retail.
“The court heard an appeal by Star Athletica LLC of a 2015 ruling by the Cincinnati-based 6th U.S. Circuit Court of Appeals that revived a lawsuit by Varsity Brands Inc., the dominant U.S. maker of cheerleader uniforms, accusing its smaller rival of infringing on five of its designs,” Reuters’ Lawrence Hurley recaps.
“The case concerned whether the stripes, zigzags and chevrons characteristic of cheerleader uniforms can be copyrighted, as Varsity contends, or are so fundamental to the purpose of the garment that they should not get such legal protection. Without such adornments, a cheerleader uniform might look like any other dress, Star argued.”
Kind of like a polo shirt without an alligator would look like any other polo shirt.
“Fashion designers are supporting Varsity in the case, arguing in friend-of-the-court briefs that copyrights protect their creative endeavors and serve as a check against piracy. Consumer groups, library associations and advocates for costume hobbyists are supporting Star, arguing that expansive copyright protection for an item’s appearance could dampen consumer creativity and potentially limit free expression,” reports Brent Kendall for the Wall Street Journal.
“John Bursch, a lawyer for Star, argued Varsity’s infringement claims weren’t valid because the designs served core functional purposes. For example, the lines and zigzags serve to make cheerleaders appear taller and slimmer, he said.”
Then he moved from the abstract to the red carpet.
“Bursch cited an example of the utility of a Stella McCartney dress worn by film star Kate Winslet,” writes Brandi Buchman for Courthouse News Service. “Bursch said that, similar to the slimming or curve-enhancing effects the designs of a McCartney dress might have on a woman, like the ‘dark lines [along the sides of Winslet's dress] change how she is perceived [by making] her shape look different to someone who is looking at her,’ the lines on Star's uniforms do the exact same thing.”
Justice Stephen G. Breyer was skeptical of Varsity's argument.
“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.
And Justice Sonia Sotomayor agreed that a ruling in the plaintiff’s favor “could transform the industry,” Adam Liptak reports for the New York Times.
“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.”
As we say in the Bronx.
Meanwhile, “the erudite … Breyer, who speaks flawless French and is a recognized authority on architecture, showed yet another side during oral arguments,” writes Robert Barnes for the Washington Post. “‘The clothes on the hanger do nothing; the clothes on the woman do everything,’ Breyer opined. ‘And that is, I think, what fashion is about.’”
“‘That’s so romantic!’ interjected Justice Elena Kagan.”
On the other end of the romance spectrum, a Seattle Post-Intelligencer headline asks: “What do cheerleader uniforms and smartphones have in common?”
Well, both are getting their day in the Supreme Court this term. And “both embody an essential aspect of what makes modern products successful: design,” write Lynda J. Oswald, University of Michigan, and Dan Cahoy, Pennsylvania State University, who are two business law professors specializing in the impact of patent law on business strategy.
On Oct. 11, the court heard arguments for Samsung Electronics Co. v. Apple, you may recall. Samsung is currently on the hook for over a half-billion dollars for alleged theft of its smartphone inventions and designs.
“According to Apple, its elegant iPhone shape and distinctive graphical icon display was copied by Samsung in an attempt to free-ride on Apple’s success. Samsung responded that its decision to incorporate similar design elements was dictated by the function of a smartphone and need for it to fit in a pocket,” the professors write.
Neither the smartphone nor the cheerleader uniform case has a simple answer, they suggest, concluding: “Intellectual property policy represents a delicate balance between innovation incentives and competition. When that balance is disrupted or simply reset, it is everyone’s concern.”
Rah, rah, sis, boom, bah to maintaining delicate balances, and good luck to the eight-person court in deciding what that means in both of these cases.