Intellectual property for cheerleaders

Cheerleader
Is the uniform decoration “functional”?

In Star Athletica v Varsity Brands, the Supreme Court ruled that copyrights can cover the industrial designs of clothing, 3D objects, and other useful (functional) things.

The boundaries between different areas of intellectual property, such as copyrights and patents, can be fuzzy.  Copyrights, among other things, cover artistic images and 3D sculptures on various media or “articles”, but the artistic feature must be able to exist separately from any functional (useful) part of the underlying media.

Copyrights v design patents: Copyrights require only minimal originality, are cheap, and last for generations. But, if you want to claim an ornamental design for a functional (useful) item, this falls into design patent territory. Design patents have a higher threshold for originality, are more expensive, and only last for 15 years.

Some things, such as clothing, and other 3D designs that combine artistic/ornamental and useful/functional aspects, fall into multiple areas, but not always as one might predict. Clothing “knock-offs” exist because the overall pattern or cut of clothing is conclusively (legally) presumed to be functional, hence copyright exempt. So this goes into the design patent bin. However artistic fabric patterns can be copyrighted.

Which brings us to the cheerleaders, and the Supreme Court’s (SCOTUS) recently decided Star Athletica v. Varsity Brands case.  This teaches lessons that apply to other mixed artistic/functional things as well, such as 3D objects. So you folks with 3D printers, listen up!

Cheerleader uniforms have certain characteristic lines and colors, and Star Athletica copyrighted a number of these designs. Varsity Brands, possibly believing that fashion knockoffs are no big deal, copied them, got sued, and the case eventually made its way to SCOTUS.

Varsity had some interesting legal arguments – namely that the lines and colors were functional (no copyright) because they distinguished the uniform as a cheerleader uniform. However, SCOTUS didn’t buy it. They cited Mazer v Stein, an earlier 1954 SCOTUS case, where an artistic statute was ruled to have retained copyright protection even when used as a lamp base (made functional). Like this earlier case, SCOTUS ruled that if an otherwise copyrightable feature can be perceived as art separate from the useful article, then the feature can get copyright protection.

Unintended consequences?  So we can have an ornamental design for a functional item (design patent).  We can also have a useful item with an artistic feature (copyright); at least when the artistic feature can exist independently of the useful item. Confusing, and there may be some unforeseen economic issues. Although SCOTUS relied on the previous 1954 Mazar case, copyright laws have changed since 1954.  Copyright now automatically attaches to nearly everything and lasts nearly forever.

In any event, if you are planning on doing fashion knockoffs, be careful.  In fact, if you are any manufacturer planning on incorporating “an old art design” into a functional object, be careful.