“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:
Search Blog
Follow Us
Recent Posts
- Breaking News: FinCEN Postpones Beneficial Ownership Reporting Deadlines for Companies Impacted by Recent Major Storms
- What You Need to Know About the U.S. Department of Transportation’s Build America TIFIA Loan
- Breaking News: Federal Judge Blocks Nationwide Implementation of the FTC’s New Rule Banning Noncompete Agreements
- September 4th is Almost Here: How Employers Can Prepare for the Upcoming Effective Date of the FTC’s Non-Compete Rule
- Florida’s New Statutory Home Warranty: What Home Builders Need to Know
- Orange County Proposes Temporary Suspension Ordinance on New Development Applications
- Raising the Roof: The U.S. Department of Labor Announces Rule Raising Salary Thresholds for Overtime Exemptions
- New Guidelines Anticipated Following HHS’s Health Cybersecurity Concept Paper
- SECURE 2.0 and Protecting Your Designated Beneficiaries
- Florida Appellate Court Provides Further Guidance Regarding New Summary Judgment Rule
Popular Categories
- Employment and Labor
- Construction
- Business of Real Estate
- Construction Litigation
- Landlord-Tenant
- Litigation (Labor & Employment)
- Competition
- Real Estate Law
- Cybersecurity
- Intellectual Property
- Public Private Partnership
- Appeals
- Construction
- Litigation
- Contracts
- Trusts and Estates
- Development/Land Use
- Data Security
- Business
- Supreme Court
- Public Finance
- Privacy
- Technology
- IP Litigation
- Litigation (Appellate)
- Patents
- Business
- Regulatory Compliance
- Florida Government Contracts
- Foreclosures
- Trademark
- Health Care
- Contracting
- Financial Institutions
- Compliance
- Estate planning
- International Dispute Resolution
- Property Tax
- Florida Public Contracts
- Government Contracting
- Government Contracts
- Conveyances
- Government
- Lease
- Appellate Blog
- Patent Office
- Insurance
- Wealth planning
- Federal Government Contracting
- Florida Bid Protests
- Public Contracts
- Cyber fraud
- Infringement
- Proposal Writing
- Public Bidding
- GAO
- International Arbitration and Litigation
- Bid Protest
- Arbitration
- Americans with Disabilities Act
- International
- Restrictive Covenants
- Grant Writing
- Copyright
- Promissory Notes
- Title
- Small Business
- Florida Procurement
- Public procurement
- Consumer Privacy
- PTAB
- General Liability
- Technology
- International Arbitration
- Liens
- Liens and encumbrances
- Creditor's Rights
- Bidding
- Attorneys' Fees
- Inter Partes Review
- Power Generation
- Consumer Protection
- Regulation
- Contracting
- Government Vendor
- State Government Contracts
- Venue
- Ad Valorem Assessments
- Florida Administrative Law
- Attorneys' Fees
- Florida Rules of Appellate Procedure
- Bankruptcy
- Florida Public Procurement
- Russia-Related Arbitration
- Mortgages
- Record on Appeal
- Eviction
- FINRA
- Rehearing
- Loan guaranties
- Patents - Assignor Estoppel
- Dispute Resolution
- Statute of limitations
- Statute of repose
- Liens
- Maritime
- Damages
- Briefing
- Request for Proposal
- Patents - Obviousness
- Commercial Brokerage
- Department of Labor
- Trade Secrets
- Bid Writing
- Florida Bidding Strategies
- Renewal
- Attorneys' Fees
- Florida County Lands
- Florida Economic Incentive Packages
- Jury Instructions
- Stay
- Certiorari
- Design Professionals
- email hacking
- Forum Selection
- Assignment of Contract
- Assignment of Proceeds
- Offers of Judgment
- Prevailing Party
- Settlements
- Banking
- Designer Liability
- Finality
- Fintech
- Lis Pendens
- Appellate Jurisdiction - Deadlines
- Evidence
- Evidence
- Expert
- Expert Science
- Federal Rules of Appellate Procedure
- Marketing/Advertising
- Preservation
- Unlicensed Contracting
- Federal Supply Schedule
- Florida Public Records Law
- Mootness
- Socio-Economic Programs
- Sunshine Law
- Veteran Owned Business
- Homestead
- Partnerships and LLCs
- Standing
Editors
- Of Counsel
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Senior Associate
- Partner
- Associate
- Partner
- Senior Associate
- Partner
- Associate
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Of Counsel
- Senior Associate
- Partner
- Associate
- Partner
- Partner
- Associate
- Partner
- Partner
- Partner
Archives
- October 2024
- September 2024
- August 2024
- June 2024
- May 2024
- February 2024
- November 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- October 2019
- August 2019
- July 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016