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On Monday, the U.S. Supreme Court agreed to hear a case that is nominally about cheerleader uniforms, but could have some impact on Hollywood merchandising as well.
The eight black-robed justices will be reviewing an opinion handed down last August from the 6th Circuit Court of Appeals that allowed Varsity Brand to pursue copyright claims over similar cheerleader uniforms made by Star Athletica. The ruling held that the stripes, chevrons and color blocks incorporated into these uniforms were purely aesthetic.
Copyright law allows the protection of “any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object,” meaning courts have to figure out what’s functional (not protected) and what’s decorative (protected). In its petition for review, Star Athletica called the issue the “most vexing, unresolved question in copyright law,” one that had divided courts throughout the nation and created uncertainty in the $330 billion apparel industry.
But Hollywood could have a stake in this battle as well. For example, George Lucas once went to court with the British designer who sculpted the original Stormtrooper helmets in the first Star Wars film over whether replica versions had artistic rather than utilitarian purposes. The company that owns the rights to the Power Rangers television series also sued over imitation colorful skin-tight battle suits and cheap helmets sold online. An amicus brief from Public Knowledge in this cheerleader costume case also spoke of the many people who cosplay at comic conventions.
“The multitude of contradictory separability tests that currently stand means that a costume replica may be non-infringing at a San Diego convention but infringing in New York,” stated that brief. “The situation is absurd, abstruse, and — owing to the historical lack of copyright protection for any article of clothing — functionally obfuscated from the people whom it stands to impact most.”
Recently, the high court decided not to tackle what’s a “useful article” in a dispute over the Batmobile, but this latest case over cheerleader uniforms will allow them to review the scope of what’s copyrightable later this year.
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