Star Athletica, L.L.C. v. Varsity Brands, Inc. (15-866)

argument 15-866

Star Athletica, L.L.C. v. Varsity Brands, Inc.

Supreme Court of the United States 1h 1m 5 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the Supreme Court’s central question about copyright protection for cheerleader uniform designs?

John G. Roberts 0:00

You'll hear argument next in case fifteen eight six six six six six six six Star Athletica versus varsity brands. Mr. Birch.

Douglas H. Hallward-Driemeier 0:07

Thank you, Mr Chief Justice, and may it please the Court. Congress did not intend to grant a century long copyright monopoly in cheerleader uniform design, and there are three points that support that conclusion. First, by subjecting two dimensional pictures and graphics as well as sculptures to Section one hundred one separability test, Congress made clear that two dimensional and three dimensional designs must be analysed for separability. Second, under Section one hundred one's text, the dispositive questions are twofold whether the design features can be identified separately from the useful article's utilitarian aspects, and second, whether they can exist independently. That is, the design features do not add to or change the useful article's utilitarian aspects.

Unknown 0:53

Why in this case would we even need to get to any question of separability? What was submitted was a two dimensional artwork. It may not be like Montrion, but it is Chevron's and other things. They're not submitting the cheerleader's uniform itself, they're not saying anything about the shape of the uniform. The cut of the uniform they're just saying these zigzags. designs and you can ch choose from five different ones. They're interchangeable. The d the design. So why isn't this um a a case of uh not not part it's the the pictorial graphic element is not part of the design. of the Chili disuniform if superimposed. Anyway It's reproduced on it. It's applied to it.

Douglas H. Hallward-Driemeier 1:54

There are two reasons, Justice Ginsburg. Um, first, consider the example where you have a designer who designs a military uniform, and on that military uniform, they design the best desert camouflage that's been ever designed in the history of the world. And they submit it to the copyright office, and they don't claim the design in the uniform. They only claim copyright in the design on the uniform. There's no question they would have the copyright in the design, but the courts would still look to See whether that adds to the utilitarian aspects of the uniform, such that that design copyright holder could not prevent the military from the U.S. From producing a military uniform that uses that design.

Douglas H. Hallward-Driemeier 2:31

That's why it's so important to understand that in Section 101, not only two-dimensional or three-dimensional, but also two-dimensional designs are subject to separability. And there's a second reason, Justice Ginsburg. What you're referring to generally is kind of the area of fabric design. And a good example of fabric design is the flowers on the fabric in the folio. impressions case that we reprint on page seven of our reply brief. And those flowers, you could expand the design, you could contract the design, you can make any article of clothing out of it whatsoever, you could rotate it 45 degrees, and it always works functionally the same. Here when you're talking about these cheerleader uniform designs, the arrangement of the color blocks and the chevrons and the stripes, if you made it smaller and put it in the center of a uniform, it would

Douglas H. Hallward-Driemeier 3:18

No longer have the slimming effects. It wouldn't make the wearer look taller. I mean if you put it on a a hat or a lunch box, it didn't have the

Elena Kagan 3:26

That's their whole point, that they've taken the pictorial design. and applied it not just to a my by the way, this is not conceding, I don't think by them. They'll talk on their own and tell me. that this isn't obvious and and um some of your Amikai brief seem to take that position that if all we're looking at is a picture of this colour blocks and stripes, that it may be too obvious to qualify for copyright protection. Or not original enough, whatever. But my point is that they already have done that. They've taken the designs and not put it on a cheerleading uniform. They've put it on sweats. They've put it on both tops and bottoms. So

Douglas H. Hallward-Driemeier 4:15

What does that do for you? Let me respond to both of those points, the obviousness second, first the other garments. To the extent they're putting it on other garments, if you look closely at those pictures, the design changes.