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On March 22, 2017, the Supreme Court decided Star Athletica, LLC v. Varsity Brands, Inc. Varsity Brands, Inc. designs and manufactures clothing and accessories for use in various athletic activities, including cheerleading. Design concepts for the clothing incorporate many elements but do not consider the functionality of the final clothing. Varsity received copyright registration for the two-dimensional artwork of the designs at issue in this case, which were very similar to ones that Star Athletica, LLC was advertising. Varsity sued Star and alleged, among other claims, that Star had violated the Copyright Act. Star countered that Varsity had made fraudulent representations to the Copyright Office. Both parties filed motions for summary judgment. Star argued that Varsity did not have valid copyrights because the designs were for “useful articles” and cannot be separated from the uniforms themselves, all of which tends to make an article ineligible for copyright. Varsity argued that the copyrights were valid and had been infringed. The district court granted summary judgment for Star and held that the designs were integral to the functionality of the uniform. The U.S. Court of Appeals for the Sixth Circuit reversed, however, and held that the uniforms Varsity designed were copyrightable.
By a vote of 6-2, the Supreme Court affirmed the judgment of the Sixth Circuit. Justice Thomas delivered the opinion of the Court, which held that a feature incorporated into the design of a useful article is eligible for copyright protection under the Copyright Act of 1976 only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work -- either on its own or fixed in some other tangible medium of expression -- if it were imagined separately from the useful article into which it is incorporated; that test is satisfied here. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Alito, Sotomayor, and Kagan. Justice Ginsburg filed an opinion concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Kennedy joined.
To discuss the case, we have Zvi Rosen, who is a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law.