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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  • icon
    That Anonymous Coward (profile), 26 Jul 2016 @ 12:26am

    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.
    https://twitter.com/aedison/status/710182648312946689
    "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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jul 2016 @ 1:19am

    Is this an extension of the Apple "we own rounded corners" trade dress suit? Why are they using copyright and not trade dress?

    reply to this | link to this | view in chronology ]

    • identicon
      Angie NK, 26 Jul 2016 @ 4:45am

      Re: Trade Dress

      I'm assuming they're not using trade dress because this suit isn't about a common theme among all of Varsity's outfits, but rather separate designs on individual outfits being copied. Trade dress deals with a design that's found on all or most of a particular company's products.

      reply to this | link to this | view in chronology ]

  • icon
    MadAsASnake (profile), 26 Jul 2016 @ 1:58am

    "Clothing and fashion have never been considered covered by copyright for many good reasons"

    As far as I can see, this can be generalised over pretty much everything copyright is used for. Copyright has one mechanism: to stop people doing things.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 26 Jul 2016 @ 2:27am

      Re:

      The funny thing is that many of the designers who scream how they need copyright to survive.... have been caught multiple times ripping off the designs of others.

      reply to this | link to this | view in chronology ]

      • icon
        MadAsASnake (profile), 26 Jul 2016 @ 3:04am

        Re: Re:

        The thing is - that is usually a good thing - that is how society progresses.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 26 Jul 2016 @ 7:10am

          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.

          reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 26 Jul 2016 @ 1:50pm

        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.'

        reply to this | link to this | view in chronology ]

        • identicon
          Rekrul, 26 Jul 2016 @ 3:18pm

          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?

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 26 Jul 2016 @ 8:51pm

            Re: Re: Re: Re:

            Yeah, Disney is easily one of if not the worst offender given how much money they've made off of public domain works, only to turn around and spend large amounts of it making sure that nothing of theirs ever enters the public domain.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 27 Jul 2016 @ 1:02am

              Re: Re: Re: Re: Re:

              Disney are a minor nuisance when compared to Elsevier, whose objective is to own all the worlds knowledge.

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 27 Jul 2016 @ 7:42am

                Re: Re: Re: Re: Re: 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.

                reply to this | link to this | view in chronology ]

  • icon
    dwj7738 (profile), 26 Jul 2016 @ 3:49am

    Copyright NO. Trademark Yes. i.e. Adidas and the 3 stripes, Nike Swoosh, MAC Pitbull,

    reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 26 Jul 2016 @ 5:56am

      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?

      reply to this | link to this | view in chronology ]

  • identicon
    Chort, 26 Jul 2016 @ 5:06am

    Give the kid a hand.

    Abolish copyright.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jul 2016 @ 5:48am

    We shall see what remains after the lawyers are finished.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jul 2016 @ 7:04am

    If clothing can't be copyrighted because it's a "useful article", then why the fuck can software be copyrighted?

    reply to this | link to this | view in chronology ]

    • identicon
      Alwaid, 26 Jul 2016 @ 10:22am

      Re:

      If clothing can't be copyrighted because it's a "useful article", then why the fuck can software be copyrighted?

      A lot of people ask that. Unfortunately, the IP industry is pushing for *everything* to be "owned" in some way, if not multiple ways.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 26 Jul 2016 @ 10:45am

      Re:

      If clothing can't be copyrighted because it's a "useful article", then why the fuck can software be copyrighted?

      Perhaps it's not an "article". It is not physical after all. Just speculating.

      reply to this | link to this | view in chronology ]

  • identicon
    Skeeter, 26 Jul 2016 @ 7:16am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 7:22am

      Re: Are you sure?

      I believe you're thinking of trademark rather than copyright,
      Mr. Smartypants.

      reply to this | link to this | view in chronology ]

    • identicon
      TripMN, 26 Jul 2016 @ 7:56am

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Jul 2016 @ 6:59pm

        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.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jul 2016 @ 8:15am

      Re: Are you sure?

      Pound keyboard .. type something ignorant.

      Better to Remain Silent and Be Thought a Fool than to pound keyboard and Remove All Doubt

      reply to this | link to this | view in chronology ]

    • identicon
      Alwaid, 26 Jul 2016 @ 10:33am

      Re: Are you sure?

      Tell *you* what, my little blood sucking parasite friend, go out and try to copyright an entire article of functional clothing. Let us know how long it takes the copyright office to quit laughing at you, if you're still snarking around.

      reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 26 Jul 2016 @ 7:57am

    I don't think those are smarties in his pants.

    reply to this | link to this | view in chronology ]


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