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.)