No cheerleading for Varsity Brands
Is the Sixth Circuit’s decision in Varsity Brands et al v. Star Athletica the harbinger of things to come in that regard — good, bad or otherwise?
Answers from the Copyright Society’s Philadelphia seminar this week:
- Unfortunately, probably yes. In that order.
Now, what happened in Varsity Brands? Well, that’s the problem, isn’t it? Here, at least, was the question presented, as the court put it:
Are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks? That is the question that strikes at the heart of this appeal. Plaintiffs-Appellants Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc. (collectively “Varsity”) have registered copyrights for multiple graphic designs that appear on the cheerleading uniforms and warm-ups they sell. Defendant-Appellee Star Athletica, LLC, also sells cheerleading gear bearing graphic designs that, according to Varsity, are substantially similar to the designs for which Varsity has valid copyrights. Star asserts that Varsity’s copyrights are invalid because the designs at issue are unprotectable “design[s] of . . . useful article[s].” 17 U.S.C. § 101 (2012). The district court concluded that a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and colorblocks, and therefore Varsity’s copyrights are invalid. Varsity now appeals, and we take up the question that has confounded courts and scholars: When can the “pictorial, graphic, or sculptural features” that are incorporated into “the design of a useful article” “be identified separately from, and [be] capable of existing independently of the utilitarian aspects of the article[?]”
Having heard from at least a few scholars, they appear to be somewhat confounded still, and not unsurprisingly.
I can’t do justice to the seminar, the scholars, the courts or the debate that has raged on the topics that intersect here, but I do know this. As the Copyright Society seminar asked, “what about the perennial attempts at legislation in this space? What are the issues at stake behind expanding copyright protecting explicitly to fashion, and what are the odds that such legislation will ever pass?” Well, at least we had my friend Eleanor M. Lackman, from Cowan DeBaets Abrahams & Sheppard LLP, along with Kia Holifield Wimmer, Senior Counsel of apparel giant VF Corporation’s intellectual property services subsidiary to try to make sense of things.
Eleanor drew the short stick and was tasked with explaining what exactly happened in Varsity Brands. Short answer: Maybe the cheerleader uniforms aren’t entirely functional — maybe? — and maybe they’re kind of original, and maybe they’re more protectible than most clothing (read: dress) designs — which, as we know, are almost never protectible as dress designs under copyright law (or otherwise), in contrast to fabric patterns (which can be protected under copyright) — and … and …
And it’s a very long opinion, which considered just about theory out there about functionality in copyright — a damned evasive concept, mind you! — and, it appears, didn’t necessarily clarify all that much, except perhaps to suggest that there may be some life in copyright protection for fashion designs, or more life, than had previously been thought, but then again, the result was a remand to the District Court for further proceedings, so how much, really, is there to cheer about just yet? [UPDATE: Decision affirmed.]
Kia Holifield then picked up the pom-poms and explained, from the in-house perspective, just how a massive catalog of branded, engloed and emblazoned garments goes about getting protected. She explained quite bluntly that they don’t see copyright as very useful now and don’t anticipate that it’s going to get very useful for the merchandise in the brands she is involved with, which indeed do not appear to be “luxury” or “high-end” lines where the creative component of copyright could be more valuable but rather merely lucrative money-printing endeavors such as Kipling, JanSport, Vans, Lee jeans, lucy, and Splendid where whatever it is you want to register and protect is likely to be rather on the thin side if you could even get registration. In short, if it’s a trademark, they get a registration and focus on the trademark business.
No one in the room thought our future lay in a European-style “industrial design” solution for U.S. fashion or any of the ever-threatened omnibus-fashion-protection bills so favored by the upper-crust fashion houses and so very not favored by everyone else. (Remember this?) Why not? Because, the consensus seemed to be, our fashion, legal and commercial regimes just aren’t the same Europe’s, and you can’t just superimpose a European type of IP protection on top of the American fashion-garment-marketing-brand system just willy-nilly, silly.
Then someone mentioned the special issues involving copyright protection for costumes. Copyright is bad for real clothes, but, oddly enough, is good for make-believe costumes. (Trademark, not so good. Ah, yes… memories!)
That’s what I took away from the 90 minute program, which seemed to zoom by like the Amtrak train I took to — no, let me rephrase. It went by very fast! Three cheers for the Copyright Society of the USA, the best old Society of all!