On 22 March 22 2017, in the case of Star Athletica LLC v. Varsity Brands, Inc., et al, No. 15-866, the Supreme Court of the United States ruled, in a 6-2 decision, that design elements of a cheerleading uniform may be protected under copyright law, even though the uniform has a utilitarian function.

It is a well-known tenet under United States copyright law that apparel is outside the scope of the Copyright Act of 1976, which bars protection for works of authorship that possess utilitarian functions.  However, §101 of the Copyright Act carves out a limited exception, namely that “pictorial, graphic or sculptural features” of the design of a useful article are entitled to copyright protection if they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Star Athletica v. Varsity Brands involves copyright infringement of cheerleading uniforms designed by Varsity Brands, considered to be the leader in the market, copied by its rival, Star Athletica.  The majority opinion, written by Justice Thomas, sided with Varsity Brands, and ruled that the two-dimensional pictorial design, consisting of chevron, zigzags, stripes and colorful shapes, applied to Varsity Brands’ uniforms was deserving of copyright protection under §101 of the Copyright Act.

This case has elicited microscopic scrutiny by the fashion industry. Continue Reading Supreme Court of the United States: Cheerleading Uniforms Can be Copyrightable: Star Athletic LLC v. Varsity Brands, Inc.

On 12 January 2017, the German Federal Court of Justice has handed down its second landmark decision on cheat software within three months. After clarifying the question under which conditions cheat software may constitute copyright infringement in October last year, the Federal Court of Justice has now decided that cheat software can constitute an act of unfair competition, too.

To be able to play online games, e.g. World of Warcraft (WoW) or Diablo III , it is necessary to download a client software and install it on the computer. Achieving progress within the game regularly takes several hours. To save time and to easily achieve the goals of the game some companies develop software, so-called cheat- or buddy-bots, allowing the player to overcome the challenges of the game automatically. Online game developers are not pleased by this fact, which is why they try to prevent the distribution of such cheat bots up front. Continue Reading German Federal Court of Justice Shows the Red Card to Cheat Software for Online Role-Playing Games

The question of whether a sequence of exercises, such as yoga poses or dance moves, can be copyrighted has occupied the attention of international courts, scholars and copyright offices for some time. In late 2015, the issue received some media attention when yoga guru Bikram Choudhur tried to gain a US copyright in a signature sequence of yoga poses but failed before the Court of Appeals for the Ninth Curcuit. Despite the effort of international copyright conventions, the question of copyrightability essentially remains a matter of national law. Continue Reading The Copyrightability of Yoga Poses, Dance Moves and Exercise Routines

According to the code of ethics of the International Association of Culinary Professionals, a culinary professional must not knowingly “appropriate […] any recipe or other intellectual property belonging to another without the proper recognition.” And, in addition to the ethical, there are legal issues. While copying culinary creations might not sound like a big deal to millennial food bloggers and vloggers, lawsuits—sometimes with high stakes—have been filed over (mis)appropriated recipes. But whether claims to a signature dish will hold up in court is a different question and will likely depend on the scope of protection of the applicable copyright law(s). Continue Reading Your IP Valentine: Can Recipes Be Protected by Copyright?

On 12 December 2016, the PRC Ministry of Culture released the Administrative Measures for Business Activities of Online Performances (the “Measures”). The Measures target providers of live performances broadcast or streamed over the Internet or a mobile network (“Streaming Services Providers”) who derive a profit from such activities through advertising, sponsorship or by charging for access. The Measures will come into effect on 1 January 2017. Continue Reading China Tightens Control Over its Growing Online Streaming Industry by Introducing New Regulations

For many people, Christmas is the most wonderful time of the year: decorating the house, wrapping presents and, last but not least, listening to cheesy Christmas songs, some of which are among the highest-earning songs of all time. When Santa Claus comes to town, however, he might bring some gift-wrapped intellectual property lawsuits with him. The European Patent Office, for example, records many patents that mention Christmas in their title. Most of these patents relate to Christmas trees or their decoration. But patents are not the only kind of intellectual property right that could cool your Christmas cheer. Continue Reading A Very Intellectual Property Christmas

It is only one example of many, but it grasps the very essence of the issue: In 2013, a New York City coffee shop owner got a tattoo on his right hand saying “I [coffee cup] NY.” Cool, if you are a tattoo fan who also loves coffee. Then he started using an illustration of his tattooed hand as a logo for his shop. Not cool, if you are the New York State Department of Economic Development, which served him with a cease-and-desist letter. In the eyes of the state agency, the use of the tattoo design on the shop’s window was less a reference or a tribute to the famous “I love NY” slogan but rather a plain case of trademark infringement.

Yes, copyright and trademark issues may even emerge from someplace as personal as your skin and the ink decorating it. But there is more to the story. Continue Reading Tattoo Copyright Cases Give an Inkling of What’s to Come

When cobwebs and tombstones start to show up in your neighborhood, probably something wicked is coming your way—except that one night of the year, on Halloween. Even though Halloween involves frightening things—haunted houses, the undead, tricks in response to no treats—it is ultimately about carefree fun. And there’s candy! But if you are in a Halloween-related business, there is a genuinely scary side to the holiday—IP issues that, if ignored, could lead to a wicked lawsuit. Continue Reading Avoid the Halloween “Trick” of an Intellectual Property Lawsuit

On 15 September 2016 (C-484/14), the Court of Justice of the European Union (CJEU) ruled that the operator of a shop, hotel or bar that offers free Wi-Fi to the public is not liable for copyright infringements committed by the network’s users. However, the operator may be required to password-protect its network in order to prevent—or cease—these infringements. Continue Reading Court of Justice of the EU: Retailers Offering Free Wi-Fi Not Liable for Patrons’ Copyright Infringements

On 8 September 2016 (C-160/15), the Court of Justice of the European Union (CJEU) ruled that the posting of a hyperlink to copyright-protected works located on another web site does not constitute copyright infringement when the link poster does not seek financial gain and acts without knowledge of the illegal publication. However, when the posting of a hyperlink is carried out for profit, it has to be presumed that the posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent from the copyright holder to publication on the linked web site. Continue Reading Court of Justice of the EU: The Posting of a Hyperlink Can Infringe Copyright If Done for Financial Gain