RAH, RAH, REE, KICK ‘EM IN THE KNEE
Uh…oh yeah! I got a question… I know that clothes can’t be protected by registering a copyright in them, but what about all those fancy stripes, circles, and doodads on my little cheerleader uniform (and I do mean little, if you can see my point, which you almost can…)?
Dear Betty V:
Strange you should ask such an intelligent question, what with all of that flipping up in the air and shouting scrambling your noggin all the time. As it turns out, this very question is now being considered by those nine (uh, eight) legal cheerleaders known as the United States (YAY TEAM!) SUPREME COURT!
In the case of Star Athletica v. Varsity Brands, No. 15-866, the justices are being asked whether the designs – chevrons, zigzags, and stripes on uniforms qualify for copyright protection as “pictorial, graphic, or sculptural works”. No…really, that’s what Varsity Brands, which is a $1 billion plus company that controls more than half of the US market (is there any other?) for cheerleading uniforms says. That the designs on their uniforms (which they admit are just little blank dresses and sweaters) are some kind of graphic design separate from the underlying clothing. The case was argued to the Court on October 31.
There is a LOT of interest in this case. On the other side is Star, which is a six year old company owned by the family that also owns R.J. Liebe Althletic Lettering Co. (the folks that invented the glossy numbers and letters you find on sports uniforms.) Liebe, it seems, used to be a supplier to Varsity, but when Varsity terminated that business deal, the Liebe folks, with the help of some former Varsity employees, decided to get into the cheer business. Most of the other companies that compete against Varsity are supporting Star, of course.
The Council of Fashion Designers of America whose members include more than 500 clothing companies like Ralph Lauren and Michael Kors, filed an “amicus” (friend of the court) brief supporting Varsity, arguing that if Star wins, the limited protection available to fashion designers would be destroyed, and would leave designers, “defenseless against copyists.” “Varsity is saying that a very basic, simple sideline uniform with a chevron in the front” should be protected by copyright, said Karen Aldridge, the founder of a competing cheerleader uniform maker Rebel Athletic. “And that’s ridiculous.” There are many other amicus briefs in the case from others including law professors, and from the Royal Manticoran Navy (a CosPlay group).
So Betty, at the risk of sounding like a jughead, the Doc is trying to imagine Justices Kagan, Sotomayor, and Bader Ginsburg in cheerleader uniforms, rather than black robes, so that they can truly get into the spirit of this important case. The Doc just can’t do it, so he has no idea how the Supremes will come down (but he hopes that it’s softly, and without serious injuries.) For the sake of fashion designers everywhere, the Doc hopes that there may be some pinstripe that separates simple geometric embellishments from complex designs so that original designs are protected somehow, but stripes, chevrons, zigzags and the like are not forever sidelined.
Have some intellectual property problems? Need cheering up? Talk to the winning team at LW&H. They look great in their letterman sweaters, with, or without chevrons.
Until next month,
— Lawrence A. Husick, Esq.