The Star Power of Copyright
By: Meredith Rose, staff attorney, and Charles Duan, Director of the Patent Reform Project at Public Knowledge
A cadre of young women, dressed in matching white costumes with brightly colored stripes. A choreographed sequence of athletic dance — jumps, flips, and high-kicks. A litany of enthusiastic slogans to strike fear into opponents while clamoring for ultimate victory.
Depending on what you like to watch on television, I may be describing a cheerleading squad — or the anime series Sailor Moon. And while the world of sports event stars may not often clash with the anime universe of children hailing from the, well, stars, the two share a connection: one that is making its way up to the Supreme Court of the United States, and touches upon the most basic fundamentals of human society.
That connection starts with that old standby of obscure laws, namely copyright, and specifically with an obscure concept in copyright law known as “separability.” Copyright is a special power given to authors of creative works, but it does not extend to useful things like clothing or toasters. This makes sense, because we don’t buy clothing or toasters primarily for admiring their beauty; we buy them for their uses (namely, keeping warm and making toast).
But even if clothing or toasters aren’t copyright-protected as a whole, some parts of them might be: a pattern printed on the fabric, or an ornate toaster lever — artistic components separable from the useful value of the work. But courts have never found a good way to figure out what is separably copyrightable from what is not, and none of the tests that have been proposed (and adopted, and revised, and thrown out, and adopted again) have ever managed to stick.
It is into this confusing, disputed confluence of philosophy and law that cheerleading uniform behemoth, Varsity Brands, recently waded. They took offense that upstart competitor Star Athletica was selling uniform designs that had color blocks, chevrons, and stripes similar to Varsity’s own offerings. This, Varsity said, constituted an infringement on their design elements. But wait, you say, aren’t cheerleader outfits clothing and thus not copyrightable? That’s where separability came in: Varsity said that the stripe patterns were independent and thus subject to copyright.
But the question behind the Varsity Brands case is much bigger than a trade spat between two uniform manufacturers over rights in stripes. The issue at stake is the extent to which someone can own the basic markings that identify a person, through clothing, with a team or group — and that question implicates more than just cheerleading uniforms. To see this, we turn to the anime side of the story.
Sailor Moon, a staple of late 90s children’s television that is now enjoying a popular renaissance, thanks to a hi-definition reboot, follows the adventures of a team of teenage girls who transform into magical crime-fighting super heroes. Their “hero” costumes are variations on the iconic sailor motif found in many Japanese school uniforms.
The show’s resurgent popularity, coupled with its nostalgia value and iconic outfits, have made Sailor Moon costumes a staple at pop culture conventions. Because the show is animated, the original artists took many liberties with the physics of the outfits, creating bows that poofed at impossible angles and skirts that seemed to be permanently fluttering in the breeze. Because of this, diehard fans shun pre-packaged versions and make their own costumes, utilizing complex layering, advanced fabrics, and homemade accessories that seek to bring the animated design into the real world as faithfully as possible.
If Varsity is to be believed, then elements of these costumes — such as the bows, the boots, or perhaps the colorways of the iconic sailor collars themselves — might be susceptible to a copyright claim by the show’s rightsholder. If that’s true, then all of the costumes that use those elements would be vulnerable to claims of infringement.
But it is more than just the risk of dulling down convention halls that drives the concern about allowing someone to claim copyright ownership over associative clothing. It is the freedom of association itself that is at stake.
Since time immemorial, humans have used simple graphical designs to identify themselves with others. Clans of Europe use heraldry; nations use flags; armies and teams use uniforms. Indeed, the right to use apparel to identify ourselves with a cause touches upon the American Constitution, as we learned in Tinker v. Des Moines, where the Supreme Court said that the First Amendment protected students wearing protest armbands.
Certainly an organization should have the ability to choose its members by disallowing non-members from using the organization’s insignia; that is what trademark law is for. And certainly in some cases a graphic design will be sufficiently intricate and distinguishable as to warrant copyright for its artistic merit.
But with something as simple as stripes on a tennis skirt, it makes little sense to give a completely unrelated company, not a member of the team, the power to dictate through copyright law who can or cannot join.
After all, when you’re fighting monsters — both in and out of court — you’re going to need all the help you can get.
