Copyright: (Get It) Out of Fashion

by Caitlin Stover

By interpreting copyright law to provide protection to fashion, has the Supreme Court inadvertently exposed the fashion industry to harm?

At issue in Star Athletica v. Varsity Brands was whether the arrangements of lines, chevrons, and colorful shapes appearing on the surface of Varsity Brands’ cheerleading uniforms were eligible for copyright protection as separable features of the design. Answering this question in the affirmative—after applying the relevant test for “separability” in a markedly different manner than courts have traditionally applied the doctrine—the Supreme Court broadly and categorically changed the game of copyright protection. Now, if a court determines that a design (1) has graphic or pictorial qualities, and (2) could be applied on a painter’s canvas, the test for copyright protection is met.

While perhaps providing some measure of clarity for circuits that are split on the issue, the Court’s opinion generates far more questions than answers.

Are baseball uniforms slim-fit leggings and a buttoned up top—or are they more? For example, let’s say a baseball uniform designer claims, as “copyrighted works,” rights to the pinstripes or the piping along the seams of jerseys. Under the precedent established by Star Athletica, who would prevail in litigation—the claimant, or the alleged copyright infringer? And if the claimant prevails, what does this mean for baseball uniform vendors? And how will this affect end consumers of baseball uniforms?

Copyright, as applied to many industries, operates on an incentive-based theory: copyright protection exists to encourage the creation and dissemination of creative expression. In practice, this protection serves as a vehicle for the commodification of creations.  When rights to a particular expression become a commodity, the scope of affected interests expands; in a capitalistic society, the protection and enforcement of commodity-based rights inevitably impacts the end consumer. After all, consumers create the market for the products (or euphemistically, “expressions”) that copyright owners want to protect their rights to.

Tempted by the potential for securing a monopoly in one of the most lucrative clothing industries in the country, brands that are in the position to assert copyrights over the original designs of sports uniforms may soon flood the courts. And allegedly infringing brands, beware: copyright infringement liability carries with it a truly staggering range of potential damages. Pursuant to § 512 of the Copyright Act of 1976, an infringer may be on the hook for a minimum of $350 and a maximum of $75,000 penalty—for each individual finding of copyright infringement. Where infringement is found to be willful, that $75,000 maximum doubles to $150,000 (again, because this bears repeating) per infringement.

Sure, money talks—but money can also silence. If companies are suddenly left exposed to unanticipated liability, scrambling to develop an adequately non-infringing alternative to their previously unchallenged iterations of Varsity Brands’ designs, there may not be a market for consumers to choose from.  A market contender toeing the new, Court-drawn line of infringement is not likely to gamble in the face of potentially ruinous pecuniary liability.

Threats of litigation, and risks of huge penalties if unable to settle litigation before trial, will likely be an effective deterrent for many potential market contenders lacking the deep pockets to carry on in the face of uncertain liability. For the Little League baseball teams, the AAU basketball teams, and more, this may translate into a sharp decline in the generic alternatives to the name-brand jersey supplier.

This brings us to yet another question: do the justifications advanced in Star Athletica for increasing copyright protections afforded to the fashion industry actually outweigh the increased costs to consumers?  If not, then perhaps copyright protection should not extend to fashion. After all, this was the conclusion previously reached by legal scholars, suggested by the text of the Copyright Act, asserted by the Copyright Register’s Office, held by a majority of federal circuit courts, and advanced by critics of Star Athletica’s holding.

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