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.

In Kimble v. Marvel Entertainment, LLC the US Supreme Court, while acknowledging the criticism of other judges and scholars, chose to uphold the long-standing rule in Brulotte v. Thys Co., 379 U.S. 29 (1964), that renders unenforceable an agreement requiring payment of royalties for a patent after that patent expires. While Brulotte remains good law, Kimble enumerates several Supreme Court-sanctioned workarounds for parties seeking to extend royalty fee payments beyond the life of a patent. Continue Reading US Supreme Court Leaves Ban on Post-Expiration Royalties Intact But Confirms How to Escape Its Web