Beyond Fashion. ACC Legal Quick Hits. How the Cheerleader Uniform Case May Be a Game Changer for Copyright In Useful Articles

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1 ACC Legal Quick Hits Beyond Fashion How the Cheerleader Uniform Case May Be a Game Changer for Copyright In Useful Articles Lynn Rzonca Ballard Spahr LLP rzoncal@ballardspahr.com September 27, 2016

2 Quick Hit The Case The Copyright Act The Court The Consequences 2

3 Beyond Cheerleading Uniforms 3

4 Give Me a! The Case Star Athletica, L.L.C. v. Varsity Brands, Inc. et. al. 4

5 The Parties Varsity Brands ( Varsity ) - World s largest manufacturer and distributor of cheerleading and dance-team uniforms and accessories - Employs designers who sketch design concepts that consist of chevron s lines, angles, diagonals, etc. for its uniforms - Sought and received copyright registration for twodimensional artwork for 5 designs Star Athletica ( Star ) - Entered the cheerleading-uniform market in Advertised cheerleading uniforms in marketing materials similar to Varsity s five registered designs 5

6 Varsity s Copyrighted Designs 6

7 Star s Alleged Copies 7

8 Varsity Takes Action District Court Varsity alleged that certain Star cheerleading uniforms infringed its registered copyrights - Presumption of validity Star s Defense - Varsity s designs are for useful articles - The pictorial, graphic, or sculptural elements of Varsity designs were not physically or conceptually separable from the uniforms 8

9 District Court Ruling District Court entered summary judgment in Star s favor - Varsity s designs were not copyrightable The aesthetic features of a cheerleading uniform merge with the functional purpose of the uniform - Varsity s designs are not physically or conceptually separable from the cheerleading uniform 9

10 Varsity Appeals Sixth Circuit Proceedings Issue on Appeal Whether Varsity s designs are protectable subject matter under the Copyright Act Holding: Varsity s graphic designs are copyrightable subject matter Reversed the District Court and entered summary judgment for Varsity The graphic feature of Varsity s designs can be identified separately from, and are capable of existing independently of, the utilitarian aspects of cheerleading uniforms - Stripes, chevrons, and color blocks serve no utilitarian function, only a decorative function 10

11 One Oh One The Copyright Act, Section 101 What is a Useful Article? 11

12 Where Does Function End Copyright Act prohibits extending copyright protection to the design of a useful article An article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information e.g. furniture, clothing, dinnerware, lighting fixtures 12

13 and Design Begin The design of the article's component features or elements cannot be copyright either, unless capable of being identified separately from, and existing independently of, the utilitarian aspects of the article How? Physical Separability Think hood ornament Conceptual Separability Ten different tests 13

14 It is apparent that either Congress or the Supreme Court (or both) must clarify copyright law with respect to garment design. The law in this area is a mess- and it has been for a long time. - Judge McKeague, dissenting opinion 14

15 Go, Fight, Win What is a Cheerleading Uniform? The High Court Decides 15

16 Issue at Hand Whether certain designs appearing on cheerleading uniforms are copyrightable, or are instead non-copyrightable, functional elements that are an inherent part of cheerleading uniform designs 16

17 The Larger Question Presented What is the appropriate test to determine when a feature of the design of a useful article is protectable under section 101 of the Copyright Act? 17

18 Varsity Still Vulnerable Not at Issue - Whether Varsity s designs are unoriginal and therefore unprotectable District Court and Appellate Court did not address Varsity s copyright registrations may still be vulnerable to attack, or difficult to enforce, even in light of a possible favorable ruling 18

19 Quick Hit Question How many different tests currently exist for determining conceptual separability? 19

20 1, 2, 3, 4 Which Side Are You Rooting For? Impact on Clothing and Other Useful Articles 20

21 The Garment Industry Uniformity Clear guidance, greater opportunity for protection Road blocks for fast fashion retailers, knock-offs e.g. Forever 21, H&M 21

22 Beyond Cheerleading Uniforms Everyday Useful Articles Household furnishings, lighting fixtures, glassware, cars Technology and Innovation 3D Printing Uncertainty about the law may discourage innovation 22

23 Beyond Cheerleading Uniforms 23

24 Thank You and Our Winner How many different tests currently exist for determining conceptual separability? TEN! 24

25 Spirit Fingers! Questions? 25