Copyright protects creative expression, but not utilitarian forms: that’s why the silkscreened art on your t-shirt is copyrightable, but the t-shirt’s design itself is not.
The Supreme Court has agreed to hear Star Athletica v Varsity Brands, a case that could change the fundamental relationship of Americans to the everyday physical objects in their lives.
In 2015, the 6th Circuit Court of Appeals ruled that Star Athletica, a company that made generic cheerleader uniforms, infringed on the copyrights of Varsity Brands, a company that dominates the industry. The 6th proposed a novel legal logic for asserting a copyright over the shape of a dress and the position of the stripes and lines on dresses: they said that because a cheerleading uniform could exist as a plain white dress, that anything that isn’t a plain white dress isn’t utilitarian, it’s creative, and thus entitled to copyright.
This precedent means that everything from fireplace pokers to pillows (not to mention toothbrushes, sink-plugs, and chairs) could all be entitled to copyright protection, if their creators can argue that any element of them isn’t strictly necessary for fulfilling their purpose. This is a form of full lifetime employment for copyright lawyers, and also guarantees market dominance to the company with the biggest litigation war-chest: there’s virtually no way to know, a priori, if a judge will find that some small element of a shirt, a blanket, a light-fixture or a shoelace is nonfunctional.
Unsurprisingly, a coalition of 3D printing companies have filed an amicus brief with the court, seeking clarity. At risk is the entire universe of shapefiles that may have not-strictly-functional elements, and so expose the companies and their customers to legal risk.
Circuit courts, the US Copyright Office, and academics have created “at least nine different tests” to separate copyrightable content from utilitarian. “The Sixth Circuit rejected them all and created a tenth,” write Star Athletica lawyers.
Star Athletica also complains about Varsity’s aggressive tactics, noting it has sued or acquired several other competitors. “The net result is inflated uniform prices, to the detriment of families everywhere,” the petition states.
As the district judge saw it, it’s impossible to sever the Varsity designs from the “utilitarian function of the resulting cheerleading uniforms.” A similarly shaped outfit “without team colors, stripes, chevrons and similar designs… is not recognizable as a cheerleading uniform.”
The appeals panel disagreed, finding no utilitarian function in Varsity’s stripes and chevrons. “A plain white cheerleading top and plain white skirt still cover the body and permit the wearer to cheer, jump, kick, and flip,” wrote the two-judge majority. “The top and skirt are still easily identified as cheerleading uniforms without any stripes, chevrons, zigzags, or color-blocking.”
Supreme Court to hear copyright fight over cheerleader uniforms
[Joe Mullin/Ars Technica]