The much-anticipated copyright dispute over cheerleading uniforms went in front of the U.S. Supreme Court on Monday for oral arguments, bringing out the fashion maven in Supreme Court Justice Stephen Breyer. Justice Breyer said Monday - find the full transcript here - that garments hanging in a closet "do" nothing, but "clothes on the woman do everything."
It was an argument between manufacturers of cheerleading uniforms that pits industry leader Varsity Brands against rival Star Athletica. But the justices invoked the work of Dutch painter Piet Mondrian, French artist Marcel Duchamp, clothing designer Stella McCartney (including a certain style dress worn by Hollywood's most celebrated actresses, including Kate Winslet) and gorilla suits as they tried to figure out whether the design of cheerleading uniforms can be protected under copyright law.
The court heard an appeal by Star Athletica of a 2015 ruling by the Cincinnati-based 6th U.S. Circuit Court of Appeals that revived a lawsuit by Varsity Brands Inc, the dominant U.S. maker of cheerleader uniforms, accusing its smaller rival of infringing on five of its designs. The case concernS whether the stripes, zigzags and chevrons characteristic of cheerleader uniforms can be copyrighted, as Varsity contends, or are so fundamental to the purpose of the garment that they should not get such legal protection. Without such adornments, a cheerleader uniform might look like any other dress, Star argued.
Memphis, Tennessee-based Varsity holds copyrights for various cheerleader uniform designs. It sued for copyright infringement when Chesterfield, Missouri-based Star sought in 2010 to enter the market that Varsity dominated.
Under copyright law, a design feature is subject to copyright only if it is substantially separate from the product to which it is attached, whether it be clothing or other items such as furniture. Star says the design embellishments like those Varsity uses are intrinsic to the utility of cheerleader uniforms and therefore cannot be copyrighted.
Both sides received some backing from the bench. Kagan appeared supportive of the type of broader copyright protection Varsity advocated. Breyer and Justice Sonia Sotomayor appeared to favor Star's arguments. Breyer warned of companies like Varsity using copyright law to create a monopoly over the cheerleader uniform market.
Star's lawyer John Bursch brought up camouflage, saying that when a company comes up with a design for camouflage it could seek protection for the design, but not for the garments themselves. Star's argument is that there is no question camouflage can get copyright protection, but that should not stop the U.S. military from using the design to make uniforms.
Kagan said in some cases design elements cannot be separated from a garment's function. She mentioned T-shirts boasting a tuxedo design, noting that the design works only because its lines are positioned in a certain way so that it mimics the look of a real tuxedo.
A ruling is due by the end of June.