The Intellectual Property Implications of Star Athletica v. Varsity Brands

While most recent advancements in copyright law focus on mainstream technological or media-based infringements, intellectual property scholars were dealt a landmark decision in a more unconventional facet of the law: fashion. Star Athletica, LLC v. Varsity Brands, Inc (2017) [1], decided after 8 months of deliberation in the U.S. Supreme Court, examined a lawsuit brought forth by Varsity Brands when Star Athletica began to produce cheerleading uniforms with chevrons, zigzags, and other aesthetic elements similar in design to those produced by Varsity Brands, but at a far lower price [2]. In response, Varsity Brands sued Star Athletica. Star Athletica defending itself against the copyright infringement claim by arguing that the specific designs of the cheerleading uniforms were necessitated by their use. In other words, they were designed with a practical and functional motive in mind. The Supreme Court struck down this argument, deciding the case in favor of Varsity Brands [3].

The Supreme Court’s decision established a new precedent for what aesthetic elements are “copyrightable” under the law. In this case, the Court ruled that Varsity Brands’ clothing designs were copyrightable as aesthetic elements [4]. This decision established a new “separability” test for copyright law in fashion: aesthetic elements of clothing can be copyrighted if they, first, stand on their own as a work of art, and second, qualify as copyrightable from a visual medium [5].

Although fashion designers were in support of the Supreme Court’s decision and intellectual property law scholars noted it as an interesting development in the field of copyright law, a closer analysis of the Supreme Court decision leaves much to be wished for in the wording of the case and the tenets of the “separability” test [6]. The decision leaves too much room for ambiguity not only in the interpretation of how this new copyright legislation can be effectively enforced but also in how much this decision will impact the curtailing of creative expression in the fashion industry.

The official decision in Star Athletica, LLC v. Varsity Brands, Inc. specifically claims that “Congress has afforded limited protection for these artistic elements by providing that ‘pictorial, graphic, or sculptural features’ of the ‘design of a useful article’ are eligible for copyright protection as artistic works if those features ‘can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article”’ [7]. But the argument also states that the distinction “between art and industrial design, however, is often difficult to draw” [8]. The Supreme Court admits that the existing legislation struggles to set a standard to differentiate which design can be defined as a work of “art” [9]. The confusion over this nuance was made apparent almost immediately in Puma SE v. Forever 21, Inc. (2017), a lawsuit which began a week after the Star Athletica, LLC v. Varsity Brands, Inc. decision. In this case, Puma used the aforementioned decision to allege that Forever 21 stole designs from their Rihanna-backed Fenty sandal collection. Forever 21 denied this claim by arguing that Rihanna had not designed the collection herself [10]. A California judge ruled against Puma because there was not enough evidence to support Puma’s argument that it held a unique claim to the copyright of the aesthetic element because of subtle differences in Forever 21’s product design, pointing out a large flaw in the Star Athletica, LLC v. Varsity Brands, Inc. decision over how much of a difference has to exist for a product to count as copyright infringement. In other words, the law is still unclear on what subtle artistic differences are covered under a company’s copyright over an aesthetic element [11].

This gaping hole in the legislation was further exposed in other fashion industry-centric cases later that year. For example, a 2018 court ruled in Silvertop Associates, Inc. v. Kangaroo Manufacturing (2018) that a banana costume was copyrightable based on physical features such as a black tip, length, and shape of the costume [12]. With other pending cases being filed under the Star Athletica, LLC v. Varsity Brands, Inc. decision, there is room left for interpretation about what constitutes a noticeable difference in product design.

Beyond the lack of clarity in the nuances of what can potentially be covered by copyright law, the implications of companies being able to copyright specific aesthetic elements in the fashion industry and restrict their widespread usage on generic brand items of clothing are daunting. In a Vogue article following the decision, Joseph Mueller, a Dewey Pegno & Kramarsky LLP litigation boutique lawyer, argued that the new legislation could allow designers to copyright “conceptual” parts of their designs rather than the typically trademarked aspects. This is a gray area that Star Athletica, LLC v. Varsity Brands, Inc did not address, a gray area that future cases must [13]. By leaving the door open for designers to protect themselves based on potentially abstract criteria, copyright infringement rulings could become more stringent and limiting of design development in the fashion industry, a consequence of ambiguity in the wording of the decision [14].

The results of this supposedly “landmark” intellectual property suffer from a lack of clarity and an inability to make a legitimate difference without severely impacting an industry in which the act of using similar, generic aesthetic elements across a broad range of clothing brands is very popular. Without the proper norms of copyright law in fashion or more clarification of the nuances of the current Star Athletica, LLC v. Varsity Brands, Inc. decision, the Supreme Court’s attempts to push forward into the realm of intellectual property legislation will ultimately flounder in the face of uncertainty.

Sources:

[1] “Star Athletica LLC v. Varsity Brands, Inc.” 2016, U.S. Court of Appeals. Supreme Court. Accessed March 13, 2019. https://www.supremecourt.gov/opinions/16pdf/15-866_0971.pdf.

[2] "Star Athletica, LLC v. Varsity Brands, Inc." Oyez. Accessed March 13, 2019. https://www.oyez.org/cases/2016/15-866.

[3] Ibid.

[4] Ibid

[5] Ibid

[6] Ronald-Mann. "Opinion Analysis: Court Uses Cheerleader Uniform Case to Validate Broad Copyright in Industrial Designs." SCOTUSblog. March 22, 2017. Accessed March 14, 2019. https://www.scotusblog.com/2017/03/opinion-analysis-court-uses-cheerleader-uniform-case-validate-broad-copyright-industrial-designs/.

[7] “Star Athletica LLC v. Varsity Brands, Inc.” 2016, U.S. Court of Appeals. Supreme Court. Accessed March 13, 2019.

[8] Ibid.

[9] "A Big Week for Intellectual Property: Supreme Court Decides Patent and Copyright Cases." JD Supra. Accessed March 14, 2019. https://www.jdsupra.com/legalnews/a-big-week-for-intellectual-property-46053/.

[10] Eick, Charles F. "PUMA SE v. FOREVER 21, IN | Case No. 2:17... | 20180914c78." Leagle. September 07, 2018. Accessed March 14, 2019. https://www.leagle.com/decision/infdco20180914c78.

[11] "The Unimagined Consequences of Star Athletica's 'Imaginative Separability' Test." IPWatchdog.com | Patents & Patent Law. December 10, 2017. Accessed March 14, 2019. http://www.ipwatchdog.com/2017/12/11/unimagined-consequences-imaginative-separability/id=90829/.

[12] "SCOTUS Ruling on Cheerleading Uniforms May Extend Copyright Protection to Athleisure." SportTechie. August 29, 2018. Accessed March 14, 2019. https://www.sporttechie.com/scotus-athleisure-copyright-law-protection-fitness-clothing-star-athletica-legal/.

[13] Yotka, Steff. "What the Supreme Court's First Ruling on Fashion Copyrights Means for the Runway." Vogue. May 26, 2017. Accessed March 14, 2019. https://www.vogue.com/article/supreme-court-star-athletica-varsity-brands-ruling-fashion-industry.

[14] "Copyrights at the Supreme Court: Star Athletica v. Varsity Brands." IPWatchdog.com | Patents & Patent Law. May 30, 2017. Accessed March 14, 2019. https://www.ipwatchdog.com/2017/03/22/copyrights-supreme-court-star-athletica-v-varsity-brands/id=79767/.