Star Athletica: One Year Later
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Star Athletica: One Year Later

Star Athletica was a case that involved a
major producer of cheerleading uniforms, Varsity Brands. And, um, they alleged that Star Athletica,
which was kind of a up-and-coming producer of cheerleading uniforms, had infringed some
of Varsity’s designs. Star Athletica is a case that involved the
application of pictorial, graphic or sculptural works to a useful article. In general, anything can be s- protected by
copyright. One of the exceptions is that useful articles
are not. So what happens to a work that would otherwise
be protected by copyright law? A painting or a sculpture, when it’s applied
to a useful article? And the heart of that case was whether or
not we were looking at conceptually separable and therefore copyrightable designs on useful
articles or whether the, uh, the designs were integral to the construction of the cheerleading
uniforms themselves and could not be separated. Um, and thus copyrighted. The challenge has been that over the decades,
the courts have struggled with how to test separability. And there were a m- great many tests that
were being used that had no statutory basis. But it was courts struggling to deal with
something that judges are not particularly comfortable dealing with. What is art really? Can I imagine this separated from the useful
article? If the artwork at issue in Star Athletica
were on a canvas in a fine art museum, uh, or a modern art museum, there’s no question
that it would be entitled to copyright protection. And so, really what’s the difference? The justices were talking about fashion and
function, and that the function of fashion is to make the human body appear more beautiful. Because this kind of design, it follows the
figure of the human body, essentially. And that’s the difference between just a design
of, like, stripes and zigzags and chevrons sort of abstractly, and then one that’s put
on something that looks like a particular piece of apparel that’s meant to, uh, fit
onto a human body in a particular way. To kind of, boil down the Supreme Court’s
ruling, and it’s really, can you conceptualize this
design as something that’s not purely uh, utilitarian? And is it something you’d hang on your wall? I’m so happy that Justice Thomas wrote a s-
very, very strong opinion, uh, saying, “Guys. Go back to the copyright statute. Just read the language of the statute.” Which does say that anything that is separable
can in fact, be copyrighted, and a design can be separated. And the courts interpreted this long-standing
but very fuzzy question of separability when it comes to the artistic elements versus the
useful elements of a design work and came up with a new standard, or a new
test rather, to apply. What it did do, I think effectively, is clear
away all the dross of all those unnecessary tests. And it was- there were many of them. The Supreme Court said, “No. Stop. Don’t do any of that work.” That’s a waste of time, that’s a waste of
money and that’s not what the statute says. All you need to do is look at the useful article
and see if you can identify any pictorial, graphic or sculptural elements and can you
imagine them separately? And would they be subject to copyright protection
if they were separated either in the shape of the useful article or imagined on a canvas? And if you can, and that isn’t a useful article,
then it’s protected. End of discussion. Since the 1950s, designs on fabric and- and
on- on clothing have been protected by copyright. What Star Athletica against Varsity did was
essentially, maintain that status quo. We can still protect the separable elements
of fashion. It’s opened the door a tiny bit to ways in
which we might think about what elements are separable. So there was a- a fair amount of pre-decision
anticipatory hysteria around whether the Supreme Court would move the needle in either direction. More protection for fashion, less protection
for fashion. And in the end, the court didn’t move the
needle at all. Star Athletica was not really a significant
case. It got a lot of buzz and from my perspective
it, it was kind of a foregone conclusion. It was very important to the industry not
to lose the tiny bit of protection that it does have under US copyright law. I think if you are an up and coming fashion
designer, having strong intellectual property protections is important. Fashion and design add something to our world
as, as a work of beauty just like any other work of, of art might.

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