Designs Found in Cheerleader Uniforms are Copyrightable, says US Supreme Court

Elpidio V. Peria
2 April 2017

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The US Supreme Court recently held last 22 March 2017 that designs incorporated in cheerleading uniforms are copyrightable, making it now difficult for small entrepreneurs to just mimic these same designs and pass these designs off as their own, if they were not able to apply for copyright on them first.

Of all things that may be subjected to litigation, this case involved the lines, chevrons (a line or a shape in the form of a V or an inverted V, especially one on the sleeve of a uniform indicating rank or length of service- from ) and colorful shapes on a uniform worn by cheerleaders, which was copied by a smaller company, in this case Star Athletica LLC, from that of a bigger company, Varsity Brands, Inc.

Writing for the majority, Justice Clarence Thomas, applied the text of the US Copyright law here, saying :

A feature incorporated in the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated. This test is satisfied here.

The US Supreme Court found the designs, lines and shapes have a distinct existence or is separable, even if they are placed in another two-dimensional medium, like a wall, for example, thus making them copyrightable.

While this seems straightforward, intellectual property law experts consulted by the fashion magazine Vogue said that while copyright law protects certain types of artistic and creative expressions, patent law protects innovations based on their usefulness and novelty. This case dealt with a tricky middle ground : copyright law can protect aesthetic features of a design for a useful article, but only if they are distinct enough from the article’s useful or functional aspect. The question then becomes how do we define what is useful and what is not? The expert said that this will only be clarified only later when this ruling is eventually applied in the cases that will follow it.

In a further analysis done while the case was pending in the US Supreme Court, Cornell University presented two contending views :

One, with public advocacy group Public Knowledge which said that copyrighting a useful article’s design features without a stringent inquiry into separability will stifle individual creativity, as individual consumers depend upon their ability to take existing products and adapt them. Strong copyright protection will dampen this creative energy and will negatively affect the economy. The group also pointed out that the fashion industry has been fine thus far without extended garment design feature protection and in fact demonstrates a “pirates paradox” where rampant copying facilitated creativity. Even other industries, like cuisine and comedy flourished without broad copyright protection. Law school professors cited by Public Knowledge also argue that allowing Varsity to copyright these designs will enable Varsity to have a monopoly since with copyright protection of its designs, only Varsity will be able to create cheerleader uniforms with such designs.

The other view is by the Council of Fashion Designers in America, Inc. (CFDA), which argues that broader copyright protection is necessary for the fashion industry to grow. They point out that advancing technology has allowed people to copy fashion designs at a higher rate with reduced costs, as a result, copyists can cut all of the costs that emerging designers often need to put into their business. CFDA maintains that these factors may contribute to a decrease in fashion innovation.

Now that the US Supreme Court has decided, Filipino lawyers would very easily invoke this in our local Philippine setting and our concern here should be on those tailoring shops that mimic the uniforms of famous NBA or PBA teams, even the numbers of famous players, like Michael Jordan’s number “23” which is found in many shirts of wannabe basketball players pounding the hardcourt, will these players and tailoring shops be stopped from doing what they are usually doing now? Most likely, it will be companies abroad, like in the US, who may have copyrighted these designs, who will stop these tailoring shops and players, Or these may spur entrepreneurial companies to start a copyright application frenzy to capitalize on Pinoy’s taste for foreign designs.

What about those unique features of festival attire in our year-long fiesta celebrations? Will they be copyrighted too? Perhaps the Department of Tourism should pre-emptively copyright them so that it belongs to all Filipinos and not to greedy entrepreneurial types who will only profit not from the creativity of others but may have the foresight to make money on these existing designs.

Or perhaps the Copyright Bureau of the Intellectual Property Office should just not follow this ruling and come up with a uniquely Filipino solution to this soon-to-be copyright conundrum in our side of the globalized intellectual property world.


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