Varsity Blues

Today we have a very special (and chic) post. We have our very first GUEST post. (Yeah, you heard that right, we want to collaborate with all you extraordinarily intelligent humans). This post is from a few upper year law students from Professor Hillary Kane’s Fashion Law class at Southwestern Law School. For all our local, Canadian law students… yeah, SWLaw is in Los Angeles (cue jealousy).

ANYWAYS, here’s their phenomenal post! (Take note of the great music puns) …

The fashion industry has 99 problems, and copyright protection is definitely one. Last Halloween, the Supreme Court heard opening arguments for Varsity Brands’ claim of copyright on certain aspects of its cheerleading uniforms. Their decision will have a major effect on the fashion industry.

On its face, Star Athletica v. Varsity Brands may seem like a done deal: Varsity, the largest US manufacturer of cheerleader uniforms, wants to prevent others from copying the zigzags, stripes, and chevron on its uniforms. However, Star Athletica is arguing that those patterns are functional to ID the outfit as a cheerleader uniform and without the patterns, the uniform “looks exactly like the ubiquitous black dress.”

Is this case really so simple, though?

The TL;DR (too long, didn’t read) version of Copyright Law is that there is no copyright protection for useful articles like clothes (no matter how chic), but fabric designs may be protected (because/if they are separable). A prime example of this is Diane Von Furstenberg’s wrap dress. In 1974, DVF created her iconic wrap dress. While copyright protection is available for some of the prints on her dresses, the wrap dress itself does not have copyright protection.

Varsity has maintained its firm hold on the cheerleading apparel market for decades, and believes the designs it places on cheerleading uniforms are protected under Copyright law. On the other hand, Star Athletica argues the disputed designs are insufficient to qualify for Copyright protection.

If the Supreme Court grants copyright protection for Varsity’s design, what would this mean for the world of fashion?

First, those within the uniform industry believe providing copyright protection would give Varsity a monopoly of the industry. This could threaten competitors (such as Star, Omni Cheer, Eastbay, etc.), as well as the entire clothing industry. Eventually, it could forbid up and coming designers from entering the market. What implications would such a decision have for soccer and basketball uniform manufacturers? And what about Hollywood costume designers?

On the other side of the field, Varsity believes their designs are original enough to receive copyright protection. The company invested time and money to create these designs and wants to protect its investments. Varsity does not want to fall victim to copycats, like so many other fashion designers have (from ACRONYM to Louis Vuitton). Although copying is the sincerest form of flattery, Varsity would rather get paid.

However, the designs on cheerleader uniforms are so inseparable from the uniform itself, they are not worthy of long lasting copyright protection (we’re talking more than 70 years here). The court is likely to find that there are only so many ways to place chevrons and stripes on a cheerleader uniform — all the more reason these designs are too basic for copyright protection.

If the court allows these simple chevrons and stripes to gain copyright protection, where will the line be drawn? Will camouflage and polka dots then qualify? We’ll have to wait and see what the Supreme Court thinks later this year where each Justice will bring his or her own perspective to the case.

After all, The Notorious RBG was a cheerleader back in the day, and Justice Breyer said, “The clothes on the hanger do nothing. The clothes on the woman do everything.”

Authors: Samantha Moriarty, Brandon Sadigh, Andie Johnson, Lourdes Galvan & Andre Karchemsky

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