The Supreme Court Tackles Fashion, Copyrights, and Slimming Stripes

If you want to look thinner, try stripes, Court watchers learned yesterday. For extra slimming, look for clothes with "waist-narrowing V's."

No, the justices weren't advising Alito on the best way to wear a black robe. They were hearing oral arguments in a dispute over copyright protection for cheerleader uniform designs, arguments which quickly turned to how Kate Winslet chooses clothing to flatter her figure.

Another Type of Chevron Deference

Let's start with Kate Winslet and stripes. The discussion about the slimming effects of design came up during arguments in Star Athletica v. Varsity Brands. Star Athletica is a small company that makes cheerleader uniforms. Varsity Brands is the cheerleader behemoth, an "empire of pep" that brings in $300 million a year through outfits, cheer camps, and hundreds of copyrights on cheer uniform designs -- copyrights, Star Athletica contends, Varsity uses to shut out the competition.

Star Athletica argues that those designs shouldn't be separable from the "useful article" of the uniform itself. And under copyright law, useful articles aren't entitled to copyright protection.

Thus, the oral arguments moved quickly to the practical effects design elements can have. "When you're talking about these cheerleader uniform designs," Star Athletica's attorney, John J. Bursch, said, "the arrangement of the color blocks and the chevrons and the stripes, if you made it smaller and put it in the center of a uniform, it would no longer have the slimming effects. It wouldn't make the wearer look taller."

From there, Bursch turned to Kate Winslet, the English actress you might remember from "Titanic." Taking the example of Kate Winslet in a Stella McCartney dress from an amicus brief, Bursch noted that Winslet's "got those slimming, dark lines along the sides that change how she is perceived. It makes her shape look different to someone who is looking at her, and the lines of these uniforms do the exact same thing."

Those are "utilitarian aspects" of the design, Bursch argued, just like the "waist-narrowing V's on the sides" of a cheerleading uniform. Under the Copyright Act, a feature or element of a "useful article" must be separable from the "utilitarian aspects" of the object. Circuit courts have split on which tests to use for separability analysis, with Sixth Circuit's opinion below identifying nine different approaches -- then rejecting them all for its own.

Killing Knockoffs?

Should Varsity's design copyrights prevail, Justice Sotomayor noted, that could deal a major blow to the knockoff industry, whether it's companies offering discount uniform designs, impostor fragrances, or Canal Street handbags. "You're killing knockoffs with copyright," Justice Sotomayor said. "You haven't been able to do it with trademark law. You haven't been able to do it with patent designs. We are now going to use copyright law to kill the knockoff industry."

"I don't know that that's bad," she continued. "I'm just saying."

More Than Just Stripes and V's

Though the arguments dealt with uniform designs, the justices seemed more comfortable at points analogizing fashion to modern art . Chief Justice Roberts turned to Marcel Duchamp, for example. Justice Alito wondered whether the "great many famous abstract paintings" at the Museum of Modern Art could be copyrighted. Justices Kennedy and Ginsburg both brought up Piet Mondrian's grid-based paintings. Justice Kennedy wanted to know "what's the difference between Mondrian or Picasso and these lines" in uniforms. (The lines must be at a specific point on the body to be useful, Bursch explained. Mondrian's designs could be slapped anywhere on a t-shirt.)

Later, the assistant to the solicitor general, supporting Varsity Brands, said that the dispute boiled down to question of whether the utilitarian aspect of a uniform was "conveying information that someone is a cheerleader" or "affecting the viewer's perception of the wearer's appearance."

That prompted a bit of theorizing from Justice Breyer on the nature of fashion general:

What about the woman or the man who wishes -- and, indeed, this is a normal reason for wearing clothes -- they are making a statement about themselves? They're saying who they are? The clothes on the hanger do nothing; the clothes on the woman do everything. And that is, I think, what fashion is about.

"That's so romantic," Justice Kagan commented.

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Related Resources:

• Supreme Court Considers Fashion v. Function in Cheerleading-Uniform Case (The Wall Street Journal)
• Supreme Court Agrees to Referee Cheerleading Copyright Dispute (FindLaw's U.S. Supreme Court Blog)
• Samsung and Apple's Smartphone Design Dispute Ignites in the Supreme Court (FindLaw's U.S. Supreme Court Blog)
• Spiderman Can't Save You From Settled Patent Law, Stare Decisis (FindLaw's U.S. Supreme Court Blog)