It’s not surprising that people who wear plain black robes all day rarely discuss clothing design. What, then, prompted the Supreme Court justices to consider whether the arrangements of stripes, chevrons and color blocks on cheerleader uniforms are protectable by copyright? The main reason is that the lower courts had disagreed on the correct test for determining when a graphic feature qualifies as copyrightable subject matter. In any event, the high court’s decision should be a boon to the fashion and design industries.
We usually associate copyright with creative literary and artistic works. By contrast, industrial designs are not broadly covered by the copyright statute, primarily because such designs are governed by utilitarian considerations, not by the aesthetic concerns that are the province of copyright law. Thus, a cheerleader’s uniform, apart from any decorative elements, is considered functional and cannot be copyrighted.
Artistic vs. Utilitarian
Those decorative elements, however, were precisely the focus of the dispute that reached the Supreme Court. In Star Athletica v. Varsity Brands, the court relied on a reading of the copyright statute so straightforward that it’s a wonder other courts hadn’t come up with it themselves.
Justice Thomas wrote that a feature incorporated into the design of a useful article is eligible for copyright protection 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 graphic 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.
These can be called the separability and independent-existence requirements. The first, which the court said is usually easy to satisfy, involves finding elements that have “pictorial, graphic or sculptural” qualities, to quote the statutory language. The independent-existence prong necessitates concluding that the separately identified features can exist apart from the utilitarian aspects of the article in question.
Look at the two images below, which are typical of the five designs that Varsity Brands charged Star
with unlawfully copying.
Applying its two-part test, the court concluded that the arrangements of colors and shapes are (1) separable from the uniforms, and (2) could be imagined in another medium, say, on a painter’s canvas.
The statute requires only that the combination of stripes, chevrons and piping qualify as a non-useful, and therefore copyrightable, graphic work on its own. In short, copyright protection extends to pictorial, graphic, and sculptural works regardless of whether they were created as free-standing art or–as with the cheerleader uniforms–as design features of useful articles. More...
We usually associate copyright with creative literary and artistic works. By contrast, industrial designs are not broadly covered by the copyright statute, primarily because such designs are governed by utilitarian considerations, not by the aesthetic concerns that are the province of copyright law. Thus, a cheerleader’s uniform, apart from any decorative elements, is considered functional and cannot be copyrighted.
Artistic vs. Utilitarian
Those decorative elements, however, were precisely the focus of the dispute that reached the Supreme Court. In Star Athletica v. Varsity Brands, the court relied on a reading of the copyright statute so straightforward that it’s a wonder other courts hadn’t come up with it themselves.
Justice Thomas wrote that a feature incorporated into the design of a useful article is eligible for copyright protection 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 graphic 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.
These can be called the separability and independent-existence requirements. The first, which the court said is usually easy to satisfy, involves finding elements that have “pictorial, graphic or sculptural” qualities, to quote the statutory language. The independent-existence prong necessitates concluding that the separately identified features can exist apart from the utilitarian aspects of the article in question.
Look at the two images below, which are typical of the five designs that Varsity Brands charged Star
with unlawfully copying.
Applying its two-part test, the court concluded that the arrangements of colors and shapes are (1) separable from the uniforms, and (2) could be imagined in another medium, say, on a painter’s canvas.
The statute requires only that the combination of stripes, chevrons and piping qualify as a non-useful, and therefore copyrightable, graphic work on its own. In short, copyright protection extends to pictorial, graphic, and sculptural works regardless of whether they were created as free-standing art or–as with the cheerleader uniforms–as design features of useful articles. More...
No comments:
Post a Comment