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Friends of the Court Weigh in on Star Athletica, LLC v. Varsity Brands, Inc.

On Wednesday, September 21st, the United States Supreme Court received the amici curiae brief from the Fashion Law Institute in the case of Star Athletica, LLC v. Varsity Brands, Inc. Susan Scafidi, Jeff Trexler, and Mary K. Brennan filed the brief. Joining them were ten well-respected individuals in the fashion industry, ranging from designers to industry executives. This acclaimed group voiced their stance behind the Respondents in the case, which include Varsity Brands, Inc.; Varsity Spirit Corporation; and Varsity Spirit Fashions and Supplies, Inc.

The United States Supreme Court granted certiorari following a decision made by the United States Court of Appeals for the Sixth Circuit. That case involved the infringement of five of Varsity’s two-dimensional graphic designs. In the case, the Sixth Circuit allegedly introduced a new (10th) test to analyze the copyright element of separability as it relates to designs on cheerleading uniforms and clothing. This concept of separability derives from the U.S. Copyright Law, but the various tests that the courts apply when conducting an analysis comes from case law. Under federal law, a useful article may not be afforded protection; however, protection may be afforded to those elements that can exist independently from the utilitarian aspects of the article and are thereby classified as separable. Unlike Star Athletica, Varsity Brands asserts that the court simply restated and applied the Copyright Act’s definitional section when analyzing separability. Furthermore, Varsity Brands asserts that the Sixth Circuit’s use of “several considerations from various approaches ‘is consistent with the holdings of . . . sibling circuits.’” (citing Pet. App. 38a).

The main goal of the Fashion Law Institute and its supporters is “that the present case not upset over half a century of legal precedents relied upon by the fashion industry . . . and diminish the already limited patchwork of intellectual property protection available to fashion designers.” In order to do this, a request is made in the brief to ensure that separability within the context of copyright protection remain a “flexible statutory standard that is best left unconstrained by maladaptive bright-line rules or disparate treatment for fashion designs within the category of useful articles incorporating protectable expression.” This request is made to help prevent the minimal copyright protection in place from being completely abolished by a ruling that would make it impossible for designers to rely upon the separability assertion when it comes to design elements in fashion.

Oral arguments are scheduled for Monday, October 31st.

*The image shown above comes from the Brief of Fashion Law Institute et al. available on the SCOTUS blog docket.