How A Supreme Court Case On Cheerleader Costumes & Copyright Could Impact Prosthetic Hands And Much, Much More

from the stay-tuned dept

Every time this case has come up (and it’s been bouncing around the courts for a while now), I’ve been meaning to write about it, but am only just getting around to it now that organizations are filing amici briefs with the Supreme Court. The case is Star Athletica v. Varsity Brands, and it sounds kind of stupid: the issue is that both companies make cheerleading uniforms, and Varsity Brands accused Star of copying its uniform designs. Star argued that as a “useful article” a cheerleading uniform is not subject to copyright protection, and it won at the district court level. The 6th Circuit, however, reversed that ruling about a year ago, saying that while the uniform design may not be copyrightable, elements within the design (stripes, zigzags, chevrons, etc.) could be.

This is problematic for a variety of reasons. Clothing and fashion have never been considered covered by copyright for many good reasons, and it’s actually helped create a more innovative, more competitive, thriving market for fashion. There’s a reason why copyright is not allowed on “useful articles,” and it’s worked. We shouldn’t suddenly be changing those rules now.

The Supreme Court has agreed to hear the case, and various amici have begun filing their briefs. You can also see Star Athletica’s own filing as well, which focuses (as it should) on the narrow technical question regarding “separability” and whether or not you can “separate” the design that’s being claimed for copyright from the article itself. That is, you could argue that a square painting done on a T-shirt could be “separable” from the T-shirt and thus get a copyright, while the T-shirt itself could not. Here, however, we’re talking about basic elements of a cheerleading uniform such as stripes and color patterns that help identify it as a cheerleading uniform.

There’s also a good amicus brief from a group of law professors (Mark McKenna, Mark Lemley, Chris Sprigman and Rebecca Tushnet) which gets deeper into the question of separability and the public policy reasons why the design here should not be seen as separable from the uniform, and thus why copyright is inappropriate. But another brief totally worth reading is the one from Public Knowledge and a bunch of other organizations (including 3D printing startup Shapeways) highlighting how this case could have much wider impacts if the court begins allowing copyright on useful articles. It starts with the story of Colin Consavage who, with help from his mother, 3D-printed out a prosthetic hand:

What does this have to do with copyright law on cheerleading uniforms? Well, the 3D printing space involves plenty of sharing of designs and people building on the work of others. And this includes decorative elements. Allowing those to be carved out and covered by copyright separately could have a massive chilling effect on the community creating useful 3D printed objects.

The depth of creativity of consumers is revealed in the range of 3D printed products: jewelry, shower heads, and lawnmowers, to name a few. Colin Consavage, the boy who 3D-printed a plastic hand, exemplifies this creativity…. Seeking ?payback time? for his naturally smaller left hand, he designed his mechanical prosthetic extra large. He now hopes to add features like a screwdriver finger, a laser pointer, and plastic that changes color with temperature.

Consumer-driven 3D printing is creative, innovative, and greatly dependent on copying and derivation to which copyright may be the gatekeeper. Many 3Dprinted products, like Colin?s plastic hand, are primarily utilitarian but involve aesthetic elements. Sharing of useful 3D designs, and the productive consumer output that results from that sharing and innovation, could be thwarted by an overbroad rule of copyright.

The filing notes that this is only going to become a bigger and bigger issue as the tools for production are getting distributed worldwide now, and more and more people are creating stuff themselves.

Consumers who engage in creative activities matter to the economy and to the public weal. One study estimated that there are 11.7 million ?consumer-innovators? in the United States alone, expending $20.2 billion a year on their creative activities. Eric von Hippel et al., The Age of the Consumer-Innovator, MIT Sloan Mgmt…. Succinctly summarized: ?It is by no means only companies that, as a well-known General Electric slogan put it, ?bring good things to life.? ?


Should articles such as clothing, costumes, and 3Dprinted prosthetics become more subject to copyright in their appearances, that would not only increase the risk of liability for home-grown creators; it would send a message to those creators that they are less welcome at the table of creativity than those who can ante up the price and transaction costs of copyright licenses. That message contravenes the purpose of copyright law, namely ?to promote the progress of science and useful arts.? U.S. Const. art. I, ? 8, cl. 8. To better serve that constitutional purpose, the role of copyright in useful articles ought to remain limited.

There’s a lot of other good stuff in that brief, and it does an excellent job detailing just how important this case can be beyond just something as simple as “cheerleading uniforms.”

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Comments on “How A Supreme Court Case On Cheerleader Costumes & Copyright Could Impact Prosthetic Hands And Much, Much More”

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That Anonymous Coward (profile) says:

And the problem is, and has been for quite a while, that copyright has become the ultimate weapon.

Why innovate and offer the best cheerleading uniforms, when you can just drive the competition out by locking up shapes.

Why think that regular people deserve the right to tinker and make their own things, when a company can successfully lock up shapes, colors, etc. and wait until they decide they can profit by doing something with them (or just lurk in the shadows to pounce on someone who does it themselves).

Colin has his own prosthetic, and in creating it might make a better mousetrap. Rather than lock it away, they make it available to everyone to use in their own designs. People actually using things, are much better at figuring out what they need and what works best. Everyone is different and while we are a little ways from the days of everyone gets a hook, many of the easily available prosthetics are cookie cutters where the uses fit most. You could try to get a custom thing, if you won the lottery. Or you could assemble a series of objects to get the parts that work best for you and if it breaks you aren’t forced to pay for a whole new one, just replace the bunk part.

Copyright is no longer anything like what it was promised to be.
“Copyright” is the act of Mickey Mouse’s hand reaching forward through time to scrawl Disney’s name under the heat death of the universe.

That Anonymous Coward (profile) says:

Re: Re: Re: Re:

I just like pointing out the designers demanding their designs be given copyright think nothing of ‘stealing’ others designs. Copyright is an amazing thing if you are in the vaunted rightsholder side, where it does nothing but benefit you, forces others to pay your way, and allows you to crush anyone who might challenge your imagined position.

Rekrul says:

Re: Re: Re: Re:

Copyright in a nutshell more often than not, especially when it comes to the retroactive expansions: ‘I should be able to build upon what came before, but if anyone dares to do the same to what I create they’re criminal commie thieves and deserve the harshest punishment.’

That exemplifies Disney perfectly. How many blockbuster movies have they made based on public domain stories? How much have they contributed back to the public domain?

That One Guy (profile) says:

Re: Re: Re:4 Re:

Elsevier can be worked around though. Even if that particular parasite has a stranglehold on a lot of older stuff they’d be in a bit of a bind if enough people stopped falling for their con and went elsewhere to publish.

Disney on the other hand isn’t so easy to deal with because they’re buying laws, which affect things today and tomorrow, and is a lot more difficult to just ignore and/or bypass.

When/if Elsevier starts pushing for laws making it mandatory to publish through them then I’ll agree that they’re a bigger problem than Disney, but as far as copyright related hypocrisy Disney is, and remains, king.

Quiet Lurcker says:

Re: Re:

Neither trademark nor copyright on cheerleader uniforms, except maybe on the labels/tags. Anything else has the strong potential to serve as a government-imposed vendor lock-in, at least in this instance. If Company A can’t use the colors or shapes for a particular team, because Company B has a trademark on that color or shape, guess which company will not be selling product to that team?

Skeeter says:

Are you sure?

“This is problematic for a variety of reasons. Clothing and fashion have never been considered covered by copyright for many good reasons”

Are you, Mr. Article Writer, so sure about this?

Tell you what, go out, make up a Bulls or Steelers jersey, and start mass-producing them for sale for $10 each, and let us know how your statement fails, if you still have a computer after the Bulls and Steelers finish suing you.

See, you are so wrong in your assumptions that you wrote on, that it doesn’t deserve more than a trolling-snark to point out the facts.

TripMN says:

Re: Are you sure?

You have it all wrong, Mr. Trolling-Snark (aka Mr. Happy-in-your-ignorance).

If you go out and start selling those jerseys on the street corner, you are in trouble for using the Bulls’ or Steelers’ trademarked logos and team names. There is nothing there that is copyrighted.

You could in fact go into Chicago and sell red jerseys with white and red piping and no one could stop you. Same thing with black and yellow jerseys in Pittsburgh as long as you don’t use any of the logos or team names.

My understanding is you only start getting into a grey area if you put numbers and names on the jerseys of well known players, but that case isn’t usually covered by trademark or copyright and is just legally grey because they could attempt to sue you and make you give up because of cost prohibitions.

Anonymous Coward says:

Re: Re: Are you sure?

Honestly, this is how a lot of IP propaganda works.

A lot of IP “educational materials” for use in schools rely primarily on conflating copyright infringement with plagiarism, i.e. equating downloading a song to claiming credit on a crayon scribble made by your classmate in preschool. It’s not copyright infringement, but it doesn’t matter to the IP enforcers because rational, discerning thought isn’t their aim; it’s to induce a desired behavior, in the form of an unthinking horde frothing with imaginary outrage.

What the usual trolls screaming “FUD! FUD!” like to conveniently ignore are the cases where trademark, copyright and other aspects of IP law have been frequently used to shut down legitimate use. Because it’s not a bug, it’s a feature.

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