Monday, March 27, 2017

Chevron Deference

A mere two days after Spring's official start, on March 22, 2017, six justices of the United States Supreme Court executed a nearly-perfect pyramid stunt in their Star Athletica v. Varsity Brands decision.  The question before the court was
whether the arrangements of lines, chevrons, and colorful shapes appearing on the surface of [Varsity Brands'] cheerleading uniforms are eligible for copyright protection as separable features of the design of those cheerleading uniforms.
The alleged infringer, Star Athletica, argued that such shapes imprinted on cheerleading uniforms are uncopyrightable subject matter because they constitute "useful articles".  The Supremes' majority opinion noted that
[t]he ultimate separability question, then, is whether the feature for which copyright protection is claimed would have been eligible for copyright protection as a pictorial, graphic, or sculptural work had it originally been fixed in some tangible medium other than a useful article before being applied to a useful article.
The Court summarized the test it would apply:
...a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.
Applying its test to the facts of the case, the Court explained
First, one can identify the decorations as features having pictorial, graphic, or sculptural qualities. Second, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium—for example, on a painter’s canvas—they would qualify as “two-dimensional . . . works of . . . art,” §101. And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents have applied the designs in this case to other media of expression—different types of clothing—without replicating the uniform. [Omitted].
Siding with Varsity Brands, the Court noted that "[t]he decorations are therefore separable from the uniforms and eligible for copyright protection. [Footnote omitted]"

Though Canal Street hawkers of knockoff clothing may now have to consider dismounting from their copyright-infringing business practices, clothing designers not wanting their designs copied will likely lead an enthusiastic cheer.  Only time will tell whether Star Athletica v. Varsity Brands leads to more or less innovative fashion.

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