As we enter September, most people’s attention starts to shift to fall foliage, football, and pumpkin spice lattes. For the legal profession, our attention turns to the first Monday in October when a new U.S. Supreme Court session begins. This year, one of the cases I will be following closely is the copyright case pitting two manufacturers of cheerleading outfits against each other. The court will be addressing the question of “What is the appropriate test to determine when a feature of a useful article is protectable under §101 of the Copyright Act?”
In 2015, the Sixth Circuit Court of Appeals decided the case of Varsity Brands, Inc. v. Star Athletica, LLC. Varsity Brands created cheerleading uniforms bearing chevrons, stripes, zigzags, and color blocks on them, and it obtained copyright registrations for some of these designs. It noticed its competitor, Star Athletica, selling cheerleading uniforms with similar designs and sued. The district court found “that a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and colorblocks, and therefore Varsity’s copyrights are invalid.” The Sixth Circuit overruled the district court and found the graphic designs on Varsity Brands’ cheerleading uniforms are copyrightable subject matter. The court looked at a number of different tests used by other courts to determine whether a pictorial, graphic, or sculptural work on a useful article can stand independently of the useful article and is therefore entitled to copyright protection. Eventually, it adopted and applied a hybrid approach of its own design. Star Athletica appealed to the Supreme Court seeking to have the court rule on two questions, but the court agreed to only address the question mentioned above.
Why does this case matter? The Supreme Court’s ruling could have a profound impact on the copyright protection afforded to clothes, costumes, and any other items that combine usefulness and art or design. I used to work as an attorney for an online retailer of Halloween costumes, and I still follow industry trends. A ruling by the Supreme Court that extends the copyright protections afforded to costume designs could have a major impact on the industry. Typically, there are officially licensed costumes, and there are more generic costumes that evoke a licensed property. The generic ones have been able to survive and thrive because copyright protection has generally been limited to designs that can be separated and stand apart from the clothing. Usually, copyright protection has not been interpreted to include color selection, blocking, lines, etc., or other design additions necessary to the design of the costume or unable to stand on its own from the costume. However, if the ruling in Varsity Brands is upheld, the costume industry could see an increase in demands for licenses from intellectual property holders and lawsuits, and the generic costume industry could be in trouble.
To a lesser extent, the cosplay industry could be impacted in a similar manner. If you are creating a costume for your own personal use, you are unlikely to find yourself embroiled in a copyright lawsuit. However, if you create a detailed replica of a copyrighted character/costume, and start to profit from it by selling photos of yourself in the costume or selling your replica costumes, then you will likely be noticed and could face threats of a lawsuit.
One final thing about this case that amuses me: oral arguments are scheduled for Halloween. How fitting.