Justices Hear Fight Over Cheerleader Uniforms


     WASHINGTON (CN) — The U.S. Supreme Court delved into the world of fashion Monday, hearing arguments over cheerleading-uniform chevrons and zigzags in a copyright battle between two apparel makers.
     Attorney John J. Bursch argued on behalf of Star Athletica Inc. on Monday afternoon, urging the Supreme Court justices to consider the utility of specific patterns found on his client’s cheerleader garments and how the designs make the wearer of the uniform more easily recognizable as a cheerleader.
     Looking for consensus among the justices, Bursch cited an example of the utility of a Stella McCartney dress worn by film star Kate Winslet.
     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.
     The designs make cheerleaders conform in appearance as bustier, curvier or more petite and, as such, Bursch said that Star’s specific placement of two-dimensional designs like its zigzags, color-blocking patterns or chevrons “create the optical illusion that the wearer is thinner than they actually are” defining the utilitarian aspect of the garb.
     “Let’s say I’ve got a T-shirt with a happy face on it and maybe that makes me look better because I appear happier, well, that design has the same effect whether I’m wearing it on my shirt, my pants, my hat or carrying it on my notebook,” Bursch argued. “But here, these designs only work when they’re on the article for which they are designed in the exact place they were designed.”
     Varsity Brands Corp. sued Star for copyright infringement based on a 2010 catalog that Star distributed, which allegedly contained designs similar to Varsity’s.
     A federal judge initially sided with Star, but a divided three-judge panel of the Sixth Circuit reversed the decision earlier this year, saying that the precedent set in the lower court “would render nearly all artwork unprotectable.”
     “Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs. But paintings are copyrightable,” Judge Karen Nelson Moore wrote for the Sixth Circuit majority.
     On Monday, Justice Sonia Sotomayor grilled Star’s attorney on the potentially slippery slope of his argument as she reviewed two-dimensional sketches of uniform templates made by Varsity.
     The raw shape and form of the cheerleader’s apparel on paper, Bursch clarified, was not part of his client’s concern.
     “We all agree that [Varsity] has a copyright. Our position is that they cannot then take that image and prohibit us from making the actual three dimensional uniform…because the design neither can be identified separately nor can exist independently, which are the statutory requirements of the ‘utilitarian aspects’ of the cheerleader uniform,” Bursch said.
     Citing a similar case, Chief Justice John Roberts referred to copyright disputes over a tuxedo shirt design.
     “So does that mean, if you can have a copyright in the tuxedo shirt design, that somebody couldn’t draw a tuxedo shirt because that’s copyright and two-dimensional?” Roberts asked.
     “Correct. You could not replicate the design but you could make the tuxedo,” Bursch said. “Copyright doesn’t extend to prevent you from making the useful article depicted. That’s where the line stops.”
     The importance of a congressionally mandated “separability” concept also comes into play in Star’s argument.
     Justice Stephen Breyer explained that in this case, the concept of separability argues that “something is not capable of existing independently of the utilitarian aspects of the dress, because it looks like a dress.”
     Referring to the artist Marcel Duchamp, Breyer clarified, saying that when “Duchamp has a shovel on the wall and says it’s a work of art, he can have a copyright so long as he doesn’t try to sue people who make shovels.”
     “That’s it. That is the ‘identified separately’ portion of our argument,” Bursch agreed.
     On behalf of Varsity Brands, attorney William M. Jay told the nation’s highest court that a uniform design that somehow makes the wearer appear differently, or, more recognizable, were not aspects that qualified the uniform as “useful.”
     “I think that approach would be contrary to congressional intent and completely inadministrable,” Jay said. “If you look at the House report, you’ll see that Congress believed that two-dimensional designs on fabric or wallpaper would be separable and thus copyrightable…but that wouldn’t be the case [here].”
     He added, “Under that approach, you’d have to look at a particular design on wallpaper and try to assess whether and to what degree it might make the room look bigger or brighter or smaller or darker. I’m not aware of any scientific, reliable or consistent way to prove that.”
     Sotomayor questioned whether a ruling in Varsity’s favor would chill competition in the market.
     “Why aren’t [competitors] stuck with you being their only supplier for the rest of their existence?” she asked.
     “There are many, many variants of cheerleading uniforms available, both copyrighted and uncopyrighted, that Varsity and its competitors can sell,” Jay answered.
     “You’re killing knock-offs with copyright. 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,” Sotomayor replied. “I don’t know that that’s bad. I’m just saying.”
     During his closing statements, Bursch seized on Sotomayor’s summation.
     “There are only certain places these stripes and chevrons and color blocks can go, otherwise it doesn’t look like a cheerleader’s uniform anymore. It doesn’t identify the person,” Bursch said. “We respectfully request that you not grant 100-year copyright monopoly in design.”
     A decision will likely be reached by the Supreme Court early next year. The high court agreed earlier this year to take up the case.

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