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The Supreme Court Will Consider a Case About Cheerleading Uniforms

A case headed to the Supreme Court in the fall considers when fashion and accessories are protected by copyright.
July 29, 2016, 1:45pm

Tuesday Bassen, the indie artist whose designs for pins and patches were apparently copied by clothing giant Zara, might be interested to know that she's not the only one with questions about copyright and fashion accessories. So does the Supreme Court of the United States, which will be considering a case on the subject this fall. That's because the law that protects Bassen's designs can, if applied the wrong way, have some pretty unexpected effects on a lot of people.


In the story making the rounds on the internet lately, Zara copied Bassen's designs with slight modifications onto dresses and other clothing. Copyright law, which disallows others from copying the creative works of authors and artists, is the most obvious candidate for stopping this.

.Tuesday BassenJuly 19, 2016

But the pins and patches introduce a wrinkle, because they are not merely art for art's sake: They are fashion accessories, and as such are useful things. Useful articles like clothing and accessories cannot have a copyright overall, but courts allow art embedded in those useful articles to have a copyright so long as the art is "separable" from the utilitarian parts.

Bassen's drawings can obviously be separated—physically—from the underlying objects. Take the drawing off the pin, and it still works as a pin, holding onto fabric. It's much like another case, the 1954 Supreme Court decision in Mazer v. Stein, which said that statuettes of Balinese dancers, used as lamp bases, could hold a copyright because the statuettes were physically separable from the lamps' functional electrical elements.

The harder question, which is before the Supreme Court right now, is what happens when the design is more integrally a part of the useful item.

Star Athletica v. Varsity Brands, which involves a cheerleading uniform with a pattern of stripes and chevrons, will be heard in the fall and likely decided in early 2017.

On the one hand, the stripe patterns would seem easily separable from the underlying garment: the colors and shapes could be removed, leaving essentially a white tennis dress. But while a lamp or a pin works the same absent the overlaid design, the colorless cheerleading uniform doesn't. The angles and positions of the stripes, as any fashionista knows, serve to make the wearer look taller and thinner; without them the remaining garment loses those functions. And anyway, how exactly can a plain white dress be useful as a cheerleading uniform?

Questions like these have bewildered courts across the country: No fewer than ten different tests have been articulated to determine whether the design of a useful article is separable from the useful elements and thus amenable to copyright.


When the Supreme Court considers difficult questions like these, it often looks to the broader implications of its options for a decision. In the Star Athletica case, those implications are surprisingly broad, as I argued in a brief before the Court, in large part because of the growing interest among people in making and improving designs—a $20.2 billion industry, according to one report.

Do-it-yourself culture, growing in popularity today, turns out surprising and ingenious new ideas and products. Sewing hobbyists combine new fashion ideas to create one-of-a-kind garments. And comic book fans and historical reenactors put tireless effort into making their costumes. They engineer giant anime hair, both structurally and electronically. They painstakingly uncover dressmaking techniques from the 1800s. In some cases they invent actual technologies out of fictional devices, like a working Captain America shield.

New technologies accelerate this homegrown creativity. Open source and DIY electronics open up opportunities for home automation and invention. 3D printing and modeling technologies allow anyone with a home computer to manufacture custom tools and objects. In one particularly delightful story, a young boy, born with a smaller-than-usual left hand, 3D-printed himself a new larger one. He now hopes to add laser pointers and screwdrivers to his homemade prosthetic.

A 3D printing hobbyist might have to worry about whether a chosen color scheme for a tool looks too much like the appearance of another one

How does copyright get mixed up in DIY culture? Right now, it often doesn't, because the things being made—clothes, costumes, prosthetic hands—are useful articles whose designs are generally not separable from the underlying functionality and thus not subject to copyright. But if the Supreme Court decides in the Star Athletica case to make it easier to get copyright in clothing and other useful things, then DIY creativity could quickly be swept aside. A home dressmaker, seeing on the street a sleeve cap from a blouse, might be prohibited from borrowing the shape without somehow tracking down the copyright owner and paying a fee. A 3D printing hobbyist might have to worry about whether a chosen color scheme for a tool looks too much like the appearance of another one.

Obviously the rule of separability in copyright will not decide all of these questions. Other parts of copyright law will come into play, like the fair use doctrine that allows copying in reasonable situations like news quotations and parodies. But a rule that protects too much with copyright could certainly throw a wrench into the works of these consumer-creators. That possibility, one would hope, should weigh heavily upon the minds of the Supreme Court justices, who once praised those who "build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius."

The complexity of this whole situation tells us something important about the Bassen/Zara dispute. As I said initially, her situation is relatively simple, and almost certainly she is in the right. If she and Zara were to end up in court, a judge would not find it hard to rule that her particular designs are copyrighted and that Zara should be held accountable.

But there's a temptation to generalize from this particular situation, to say that all borrowing from any designer should be banned by copyright. Certainly we want to stop direct rip-offs of artists, but not in a way that interferes with further creativity that involves a little bit of copying and a lot of innovation.

Along with other artists, Bassen continues to fight Zara for copying her designs, and I'm glad that she's fighting because that copying was wrong. But the important point here is that not all copying is wrong. DIY creators, inventors, and artists depend on inspiration, borrowing, and even copying, and it would be unfortunate and unproductive to deem that work wrong or illegal. Copyright law, including the separability rule, has always sought to draw that line between copying that is permissible and copying that is not. To keep that line in its proper place, everyone from the Supreme Court down to you and me needs to remember both sides of this story of creativity, both the Tuesday Bassens of today and the Tuesday Bassens of tomorrow.

Charles Duan is the director of the Patent Reform Project at Public Knowledge, a consumer advocacy group that promotes the public interest in technology policy and law.