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“The clothes on the hanger do nothing; the clothes on the woman do everything.” – J. Breyer during oral argument in Star Athletica v. Varsity Brands.

Yesterday, the Supreme Court heard oral argument in Star Athletica v. Varsity Brands, which turns on whether the stripes and chevrons found in Varsity Brands’ cheerleader uniforms are sufficiently “separable” from the overall uniform to be copyrightable.  I previously explained the issues in this case and their potential impact on copyright law and the fashion industry.

This post will summarize what happened during oral argument.

Star Athletica's Argument

Star Athletica, the alleged infringer, argued that the two-dimensional zig zag designs imposed on its cheerleader uniforms are not sufficiently “separable” from the cheerleader uniforms themselves to be copyrightable because the designs possess the utilitarian functions of making the cheerleaders look slimmer, taller, and curvier, identifying the wearers as cheerleaders, covering the seams, and defining the uniforms’ style line and three-dimensional shape. Counsel for Star Athletica distinguished this case from a hypothetical situation where the two-dimensional zig zag designs are placed on a lunchbox or a hat, which would serve no utilitarian purpose and, therefore, may be eligible for copyright protection.

Varsity Brands' Argument

Varsity Brands characterized its designs as merely “art applied to a useful article,” arguing that the designs lack any utilitarian function and serve only aesthetic, expressive functions. Specifically, Varsity Brands argued that Star Athletica’s catalogue includes cheerleader uniforms with neither stripes nor chevrons so the designs cannot be essential to identifying a cheerleader as a cheerleader. They further argued that it is well established that one can “get a copyright in a work of fine art that decorates a room or a . . . useful article, . . . that makes the room look better or makes the person who wears it look better.”  Finally, Varsity Brands pointed to legislative history to argue that Congress intended “virtually all two-dimensional designs applied to useful articles . . . to remain copyrightable.”

The Justice's Responses

Justice Breyer appeared most concerned with the monopolistic implications of Varsity Brands’ argument, musing:

All women’s clothes have a design. All men’s clothes have a design. For a hundred and more-than-that years, the fashion industry has not enjoyed copyright protection. It is an industry on the women’s side, I believe, that $225 billion dollars, at least, worth of clothes are sold every year. 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. . . .  [W]hy don’t you disabuse me of my notion that we are into monopoly big-time?

Similarly, Justice Sotomayor noted that ruling in Varsity Brands’ favor could result in brand-name clothing manufacturers “using copyright law to kill the knockoff industry.”  She elaborated, “I don’t know that that’s bad. I’m just saying.”

The Supreme Court is expected to issue a decision in Star Athletica v. Varsity Brands by spring.

Relevant resources:

• Supreme Court certification granted
• Supreme Court to Consider Copyright Protection for Fashion Industry
• Oral argument transcript