Additional Thoughts on Star Athletica

I mentioned last week that I did not think highly of the Supreme Court’s opinion in the “cheerleader uniform” copyright case. Let me explain why and then make some observations about how the case may be received by the lower courts.

My problem with the opinion is that it approaches the question in a formal (dare I say wooden) way. Aside from the comment in its first paragraph that the “line between art and industrial design, however, is difficult to draw,” the Court spends virtually no time considering the practical aspects of the case or the relationship between product design and intellectual property.  For instance, there is no discussion about how the fashion industry works, no discussion of the role that trademarks play in clothing, and no discussion about how design patents should relate to useful article copyrights other than the brief thought that they are not mutually exclusive. In other words, the difficulty that the Court identifies (and that everyone else knows about) is not actually addressed in the opinion. This does not breed confidence that the holding will stand the test of time.

One potential saving grace is that the Court expressed no opinion on the question of whether the cheerleader design was sufficiently original to merit copyright protection under Feist. Until now, Feist has pretty much been the only case that held something not copyrightable for its lack or originality. If courts start getting more design copyright claims invoking Star Athletica, they may take up Justice Breyer’s view in dissent that some of these clothing designs are obvious. I’m not sure that would be a great development, but the pressure in that direction could be hard to resist. (Along similar lines, I wonder if more of these designs might get classified as trade dress.)


Call for Papers: LatCrit XXI Biennial Conference

LatCrit XXI Biennial Conference







The 2016 election, with its surreal outcome, has revealed how hyper-nationalism, white supremacy, misogyny, homophobia, xenophobia, oligarchy, and hate are essential to the mainstream conservative movements. The masking of these trends behind such double-speak as the “Alt-right movement,” has also emboldened those who seek to promote violent forms of intolerance to step out of the shadows and into the light. The poor and economically marginalized struggle with increasingly exploitative neoliberal forms of welfare, privatized for the profit and protection of the powerful financial class. The fight against these powerful forces, in the classroom, in the courtroom, and in our daily lives, has poured into the streets as we struggle to survive the onslaught of executive orders, legislation, and appointments designed to divide and conquer the democratic process. In the current dark days and in the face of previously unfathomable challenges, the bonds of solidarity and community must be nourished. At the Twenty-First Biennial LatCrit Conference, critical scholars will gather in Orlando, Florida to address the current challenges to our diverse communities. For that reason, we invite papers, panels, roundtables, workshops and works in progress across disciplinary boundaries and from all constituencies, among others, on the following questions: How do we deal with the forces that shaped the last election? What does true solidarity require in terms of organizing and mobilizing? How do we move forward, centering systematic injustice, preserving hard won gains from our ancestors, and forging ahead into the future for justice? How do we use our best talents for the struggle? What is the role of empathy and education moving forward? 

Paper, Panel, Roundtable, Workshop proposals & WIPS on other topics related to subordination and resistance are also welcome.


DEADLINE: Please submit an abstract and your contact info by May 15, 2017 through: HTTP://LATCRIT.ORG/LATCRIT2017-ONLINE-SUBMISSION-FORM/


For general information and questions about the event please email Saru Matambanadzo at smatamba@tulane.edu.




Book Recommendation

The professor who influenced me the most as an undergraduate was Bruce Bueno de Mesquita, an iconoclastic political scientist who uses game theory and other behavioral tools to assess domestic and international affairs.  I was so absorbed in writing my book that I missed his new co-authored book on The Spoils of War: Greed, Power, and the Conflicts that Made Our Greatest Presidents. Here is the abstract:

It’s striking how many of the presidents Americans venerate-Abraham Lincoln, George Washington, Franklin D. Roosevelt, and John F. Kennedy, to name a few-oversaw some of the republic’s bloodiest years. Perhaps they were driven by the needs of the American people and the nation. Or maybe they were just looking out for themselves.

This revealing and entertaining book puts some of America’s greatest leaders under the microscope, showing how their calls for war, usually remembered as brave and noble, were in fact selfish and convenient. In each case, our presidents chose personal gain over national interest while loudly evoking justice and freedom. The result is an eye-opening retelling of American history, and a call for reforms that may make the future better.

Bueno de Mesquita and Smith demonstrate in compelling fashion that wars, even bloody and noble ones, are not primarily motivated by democracy or freedom or the sanctity of human life. When our presidents risk the lives of brave young soldiers, they do it for themselves.



Copyright Eminent Domain

28 U.S.C. Sec. 1498(b) provides that the United States may (in effect) convert any copyright into a compulsory license by authorizing the reproduction of a copyrighted work subject to the need to pay  reasonable compensation to the copyright owner.  Does anyone know if this authority has ever been used?  It’s hard to think of a situation where the Government would need to do this.


No Cheers for Star Athletica

Yesterday the Supreme Court issued its decision in Star Athletica LLC v. Varsity Brands, Inc., which addressed the issue of conceptual separability in copyright for useful articles (in this case, cheerleading uniforms). I’ll post about the opinion in greater detail later today or tomorrow, but for now I want to say that this is a mess of an opinion that is bound to cause a lot of confusion.


FAN 145.1 (First Amendment News) First Amendment Society to Host The Slants @ Flying Dog Brewery

The Slants (credit: KGW)

On Sunday, April 16th at 6.00 p.m., The First Amendment Society will host the rock group whose case is waiting to be decided by the Supreme Court — yes, The Slants. They are the all-Asian American dance-rock band (music video) whose request to trademark their name was denied by the Patent and Trademark Office. The Portland-based band will perform “in a very casual setting” — the Flying Dog Brewery’s tasting room.

The case: Lee v. Tam (transcript of oral arguments)

Federal Circuit Court opinion here

Complete hyperlinked list of briefs here

“We’re rooting for Simon Tam because it is beyond crazy for bureaucrats to tell an all Asian-American band that they are disparaging themselves by naming their band The Slants, and therefore the PTO won’t trademark the name.  Simon should be allowed to name his band whatever they hell he wants,” said Jim Caruso, CEO of Flying Dog Brewery. “And we’re thrilled,” he added, “to host The Slants at the brewery because they are one seriously talented band!”

Flying Dog’s CEO Jim Caruso

Related Items 

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Vanderbilt Law Review, Volume 70, Number 2

The Vanderbilt Law Review is pleased to announce the publication of our March 2017 issue:


Daniel Farbman, Reconstructing Local Government, 70 Vand. L. Rev. 413 (2017)

Aaron-Andrew P. Bruhl, The Jurisdiction Canon, 70 Vand. L. Rev. 499 (2017)

Dmitry Karshtedt, Causal Responsibility and Patent Infringement, 70 Vand. L. Rev. 565 (2017)


Alexander Tsesis, Terrorist Speech on Social Media, 70 Vand. L. Rev. 651 (2017)


Hannah Frank, Unambiguous Deterrence: Ambiguity Attitudes in the Juvenile Justice System and the Case for a Right to Counsel During Intake Proceedings, 70 Vand. L. Rev. 709 (2017)

Soraya Ghebleh, No VIP Treatment: ACOs Should Not Get Waiver Protection from the Prohibition on Beneficiary Inducement, 70 Vand. L. Rev. 737 (2017)


Probable Cause for an Indictment or Charge

I’m in between rounds of edits on my book, so I’m going through the stack of articles that I wanted to read but hadn’t. One was “Probable Cause Revisited,” a terrific article in Stanford Law Review. The paper persuasively argues that probable cause was not the consensus standard for charging at the Founding. Many judges who gave grand jury charges instead argued for something closer to “certainty of guilt” and some expressly rejected probable cause. This changed in the late 19th and early 20th century with the development of more sophisticated criminal trial procedures, which may have left people more confident in a relaxed charging standard.  (Maybe, the article concludes, we should reconsider the probable cause standard in light of our era’s reliance on plea bargaining.)

One thing the article made me think of was whether the presence of the probable cause standard in the Fourth Amendment played a role in its adoption into the Fifth Amendment’s Grand Jury Clause or the state information procedures. There is no reason why this must have occurred, of course, but I wonder to what extent there is “off the rack” borrowing. In other words, the presence of “probable cause” in the Constitution may have exerted a certain gravitational pull towards that standard.  (In turn, I wonder why probable cause was the standard used for warrants, though I’m sure many have answered that question.) I was trying to think of other examples, but I can’t other than the opposite fact that three-fifths will probably never be used again as a constitutional fraction because that was used in the Three-Fifth’s Clause pertaining to slavery.


Alan Morrison Interviews Justice Stephen Breyer

Professor Alan Morrison

If you have yet to see it, the current issue of the Journal of Legal Education contains an interview Professor Alan Morrison did with Justice Stephen Breyer. The interview is from the January 7, 2016 annual meeting of the American Association of Law Schools. Here are a few excerpts from the transcript of that exchange.

  • Morrison (three things I won’t ask) When I was told, Justice Breyer, that we were going to have this conversation I said there were three things we were not going to talk about: 1) cameras in the courtroom; 2) collegiality among the members of the Court; and 3) the presidential election. . . .
  • Justice Breyer (On why he writes books): I was a professor for a long time. I wouldn’t have been in that job, and you wouldn’t be in your jobs unless you like explaining things to people. Isn’t that true? We learn things, and you like to explain them. We can’t control it if they want to benefit or not from what we explain—that’s their problem. But, my goodness, that’s what we do. So stop me before I write again! . . . . The best way for me to do it—as is often the best way for you to explain law in general to a  rst-year class—is to take a subject and go through the whole thing. What you are doing in teaching that subject, you are really teaching something about law, you’re teaching something about American life, and you’re teaching something about how we live today, yesterday, tomorrow in this country. All right, I’ll try. And so I’ve written three books about the Court.
  • Justice Stephen Breyer (credit: The Nation)

    Alan Morrison (on the Steel Seizure Case): When you discuss the Youngstown case in your book, you spend a lot of time talking about the backstory. Do you think that law professors should spend more time talking about the backstory in cases when they’re trying to explain what the outcome is? . . . In a lot of other cases in the book, you talk about things that don’t readily appear in the opinion, or you’ve got to dig for them, and really did in influence the outcome. I’ve always thought that, for example, in Youngstown, the fact that Truman could have stopped the strike by letting the steel companies increase their prices the next day always had a bearing on the willingness of the Court to go along with Truman.

  • Justice Breyer (response): Truman was told by his people in charge—Charlie Wilson, electric Charlie—he was told that if you do this and break your price controls, you will see prices going up all over America, and that’s going to create a pretty bad in ation, which we don’t want at the time of the Korean War. So yeah, maybe, maybe not. I mean, the story there to me shows there’s nothing obvious. Truman’s decision wasn’t that unreasonable, in my opinion. But the Court did think that. Now why tell the backstory? There, I think the backstory is important. Why is it important? There might not be an ERISA case, probably isn’t, but it probably is there. I think the truth of that area of the law was well said by Justice Jackson. He said—I’ve had to look up a few of these, as many of us have—he says, “When you look to see what the founders thought” (and I would add to that “what prior cases hold in this big area, security versus the inherent powers of the President”) “when you look to see what the President said, what the founders thought… it’s like Joseph interpreting the dreams of Pharaoh.” Yeah, that’s right. I mean, you try it. We had a case not too long ago that was something like that, that was the case of the President’s recess appointment power. What law is there on that? All I can say is, no matter how little you think there was, there was still less than that. . . .
  • Morrison (on judicial interpretation): I’d like to talk about your approach to interpretation. [In your book] you say you use “text, history, precedent, purposes and values, and consequences.” Is there anything you don’t use?
  • Justice Breyer (response): . . . Well, we’re a statutory court. We deal with statutes, and most courts do now. And we’re interpreting a text, we’re interpreting some words on a piece of paper. And there are, at least in our Court, several different interpretations that are pretty difficult to say which is which. We take cases where lower courts have come to different conclusions on the same matter of law. They’re good judges, but they’ve reached different conclusions as, in all likelihood, there are going to be different reasonable interpretations of those words. I do believe all judges—if you look into it, I think all judges do, in fact, use those six factors.The first thing they look to is the text. The text doesn’t always answer the problem; I think it usually doesn’t in our Court. But if the text says fish, that does not mean a carrot. A carrot is not a fish. The text does put limits on what you can say. And history, tradition—what’s res ipsa loquitur, I mean, what is habeas corpus? Indeed. And what was the history from which this statute emerged? Indeed. Precedent. Again, the precedent doesn’t answer the question, normally, because, if it did, why is this case here? Consequences, I think, are very important. Not any consequences in the world. I want to know purposes  first. There was some human being who wrote those words. Why? What was the object? Given the statute, what was the object? Purposes. They always have a purpose, those words.
  • Breyer (re interpretation: history & text vs purposes & consequences): . . . I think the differences between us within the Court, insofar as they’re general, are often a question of how much weight you tend, over time, to put on purposes and consequences compared with tradition, history, texts, and precedents. . . . There are risks on both sides, and there are arguments on both sides. And we’ll talk about it—it turns up, those differences will often turn up in individual cases, but I think those kinds of differences really play a much greater role in reaching di erent results than anything that would normally be called politics. . . .

Justice Jackson and Originalism

Supreme Court confirmation hearings are full of rituals, and one of the recent ones is praise for Justice Jackson’s concurring opinion in The Steel Seizure Cases. (Judge Gorsuch called the opinion “brilliant” earlier in the day.) I find this attitude curious for a couple of reasons.  First, until 1981 the Jackson concurrence was not seen as anything special, and I’m not sure how or why that changed. Second, I’m not clear whether the concurrence matters in real cases–it seems like something people pay lip service rather than something they use. Third, the Jackson opinion contains a rather acerbic criticism of originalism:

“A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

Strange that a self-professed originalist would think the opinion containing this passage is brilliant.