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John Bursch on fashion copyright

By Steve Thorpe
Legal News

In August, a U.S. appeals court said the zigzags, chevrons stripes and colors on uniforms worn by cheerleaders can be copyrighted under federal law. The 2-1 decision by the 6th U.S. Circuit Court of Appeals in Cincinnati revived a lawsuit by Varsity Brands that accused rival Star Athletica of infringing on its designs. Warner Norcross & Judd LLP has asked the U.S. Supreme Court to hear the case, which has vast implications for the $330 billion U.S. apparel industry, as well as other businesses who use design protections. John Bursch co-chairs the Warner Norcross & Judd LLP Appellate & Supreme Court Practice. He has argued 19 times in the Michigan Supreme Court and nine times in the U.S. Supreme Court, including representing the estate of Sir Arthur Conan Doyle in a copyright case over his famous detective, Sherlock Holmes.

Thorpe: Give us a quick overview of Varsity Brands Inc. v. Star Athletica and the latest court action.

Bursch:
The United States copyright laws do not protect so-called “useful articles” or their subcomponents e.g., you can’t copyright a piece of furniture, or a bike rack, or a lamp post or a garment. You also can’t copyright elements of these items that are necessary to their usefulness. This case asks whether the stripes and zig-zags on a cheerleader uniform (a useful item) are necessary to make a garment a cheerleader uniform.

Thorpe: Circuit Judge David McKeague, in a dissent last August, said, “The law in this area is a mess — and it has been for a long time.” You’ve filed a petition for certiorari with the U.S.
Supreme Court on the case. Might they straighten out the “mess?” How?

Bursch:
The federal courts and academics have articulated at least nine different tests to determine whether an element of a useful item is separable from the item itself. The Sixth Circuit Court of Appeals rejected all nine and created a tenth. The Supreme Court can straighten out this mess by picking one test that will apply in all cases, including this one.

Thorpe: Apparently part of the problem is that the copyright statute draws a distinction between the utilitarian and aesthetic aspects of a clothing design. How are lines currently drawn between decorative, identifying or functional?

Bursch:
As noted above, the courts are all over the place on how to draw these lines. That is why Supreme Court clarification is so important.

Thorpe: Another issue is how much deference is owed to the U.S. Copyright Office, which initially afforded protections to the Varsity designs. Tell us about that.

Bursch:
Courts often give deference to federal agencies’ interpretation of the law (e.g., Chevron Deference, or Skidmore Deference). But in the case of a copyright registration, the copyright act itself already articulates the deference that should be given: the burden of proof is on the party trying to show that the copyright registration is invalid. Here, the Sixth Circuit gave extra deference to the registration decision made by a few individuals within the copyright office, exceeding what Congress allows. The copyright office also has adopted an official policy that garments cannot be copyrighted, and the Sixth Circuit declined to give that policy any deference at all.

Thorpe: How might this case potentially affect copyrighted items other than clothing?

Bursch:
Because this case involves useful articles and the concept of separability, it affects not only clothing but also furniture, automobiles, sport equipment, and virtually any other useful item you can imagine.

Thorpe: Going forward, how might lawmakers bring some clarity to the issue of protecting designs?

Bursch:
Interestingly, lawmakers have tried to bring some clarity to this area of the law by consistently rejecting invitations to give some sort of protection to garment designs. The Sixth Circuit ignored that fact. It really is up to the Supreme Court now to bring that needed clarity.

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