Supreme Court Cheers on Copyright Separability

Tabitha Dunn
March 24, 2017

"They depict clothing. They depict the useful articles of which the designs are inextricable parts". Justice Stephen Breyer, joined by Justice Anthony Kennedy, dissented, arguing that even under the majority's test, the designs can not be perceived as separate from the cheerleading uniform.

The closely watched case centered on whether the stripes, zigzags and chevrons that typify cheerleader uniforms can be copyrighted, as Varsity contends, or are so fundamental to the objective of the garment that they should not deserve such legal protection. Thus, the two-dimensional work of art fixed in the uniform fabric met both the separate-identification and independent-existence requirements of the statute.

Jeff Webb, founder and chairman of Varsity Brands, said in a statement, "Today's favorable ruling represents the culmination of years of hard work to protect our original design, and we are of course gratified by the outcome and what it means for our business". They are, she wrote, standalone pictorial, graphic or sculptural works covered by Section 101. Thomas also stated that the fact the design follows the contours of a cheerleading uniform does not bar it from copyright. Second, the Court found no basis in the text of the Copyright Act for the petitioner's position that the separability test should consider "objective" components such as whether a design element can be identified as reflecting purely artistic judgment apart from functionality concerns, and whether a design feature would still be marketable without its utilitarian function. "The fashion industry barely has protection over fabric prints, lace patterns, jewelry, belt buckles, or handbag clasps", says Scafidi.

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Under federal law, the pictorial, graphic or sculptural features of the design of a useful article can be copyrighted if those features can be identified separately from and are capable of existing independently of the product's utilitarian aspects.

Justice Stephen G. Breyer, joined by Justice Anthony M. Kennedy, dissented on the basis that, even applying the majority's test, the designs at issue could not be perceived as works of art separate from the useful article.

Other reports by Guamnewswatch

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