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One clothing brand starts a popular trend with color block tops or zig-zag stripes; suddenly every store has multiple brands showing similar design features. A company introduces a product that becomes popular and then several other companies or house brand versions are selling something comparable. If a song or book can be copyright protected, can a design on clothing? The U.S. Supreme Court announced on Monday that it will be hearing two cases this year that address whether the design of an article of clothing constitutes intellectual property and can gain copyright protection.
The cases before the Supreme Court are ostensibly about cheerleader uniforms and adult diapers, but they take on broader legal aspects of fashion and product design protection. They specifically address whether a design on an article is original enough to gain copyright protection. Ultimately, a Supreme Court decision is likely to have an impact on the entire garment industry, designer knockoff merchandise, store house brands and even merchandising of popular characters and movies. Both intellectual property rights cases will be heard this fall and decided within the next term (Oct. 2016 through June 2017).
The first case, Star Athletica v. Varsity Brands, is a legal fight over designs that on cheerleader uniforms and athletic warm-up outfits. The lawsuit over the uniforms asks the court to clarify the legal basis for determining if design components on things like clothing can be copyright protected. Current federal copyright law indicates that protection can be granted for “any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object.” Otherwise, if the design is part of the basic function of the clothing, it is ineligible for protection.
Varsity Brands, Inc., a top cheerleader uniform maker, sued Star Athletica six years ago for infringing on Varsity’s copyrights for five uniform designs that involve placement of stripes, chevrons and color patterns. A federal trial judge rejected the copyright claim saying things like stripes and patterns could not be separated from a cheerleader uniform. The judge ruled that the design elements were the core of what a cheerleader uniform looks like, and not eligible for a copyright. U.S. District Judge Robert Cleland wrote that, without the designs, the uniform “is merely a blank canvas.”
The U.S. Court of Appeals for the Sixth Circuit disagreed. The majority ruled that Varsity’s uniform designs qualify as distinctive works and were therefore eligible for copyright protection. The court said the designs of the garments are separate from their function. Even without the stripes, a cheerleader could still cover their body and cheer, jump and flip, the court said.
Star Athletica petitioned the Supreme Court to take the case. They argued that the appeals court ruling would mean that garment designers could now claim they deserve copyright protection for button patterns on golf shirts or pleats on tennis skirts. Varsity countered that it employs designers who create new graphic designs based on their artistic judgment.
The second case, SCA Hygiene Products v. First Quality Baby Products, involves a dispute over patents for disposable “adult diapers.” The high court will consider whether a subsidiary of a Swedish company that sells TENA brand undergarments, waited too long to file a patent infringement lawsuit against First Quality Baby Products. First Quality makes disposable adult diapers for sale under private labels.
SCA Hygiene Products sued First Quality for infringing on its patent in August 2010, but that was almost seven months after the two companies first discussed the alleged infringement. The two companies had actually talked with each other about a possible violation of the SCA patent years earlier. Then, the Swedish firm sought advice from the U.S. Patent and Trademark Office, which reportedly took three years to respond. The issue deals with the idea that someone cannot wait forever to claim there is a copyright violation.
In patent law, the holder of the rights has to sue within six years from when the claim arises or loses the right to sue. But the federal courts have concluded that the time could be shorter if the alleged infringer claims the copyright holder was sitting on their hands rather than acting.
A federal trial judge ruled in favor of First Quality, citing SCA’s delay in acting, as did the appeals court. SCA, however, appealed to the Supreme Court on the basis of their 2014 ruling in Petrella v. Metro-Goldwyn-Mayer. That copyright ruling allowed someone who had the rights to a 1963 screenplay to claim an infringement from the studio over the 1980 film they made, Raging Bull.
The U.S. Supreme Court justices will takes on fashion, product design copyright protection next term. But, the ramifications can be long lasting.
Written and Edited by Dyanne Weiss
SCOTUSblog: Useful or creative: A look at design protection
Wall Street Journal: Can a Copyright Protect a Cheerleader Uniform?
Fortune: A Fight Over Cheerleading Uniforms Is Heading to the Supreme Court
Hollywood Reporter: Supreme Court to Hear Fight Over Cheerleader Uniforms
Photo courtesy of K C from Jersey City, New Jersey, United States’ Flickr Page — Creative Commons license