This and That by Dennis Wade

Dazzled by the tennis, but equally dazzled by the color and design of the players’ clothing at the ongoing U.S. Open at Flushing Meadow, Queens, I wondered why the All England Club at Wimbledon strictly enforces the rule of “white” tennis apparel. Apparently, it dates back to the 1800s when the sight of sweat through clothing was deemed unseemly to the Victorian sensibility, thus bringing life to the rule of white and a tradition that has held fast over the years.

This may seem like a strange beginning to discussing a recent and notable United States Supreme Court copyright decision. At issue in Star Athletica, LLC v. Varsity Brands, Inc. was whether designs on cheerleading uniforms were subject to copyright protection when the uniforms themselves were purely functional.  Varsity obtained over 200 copyright registrations for two dimensional designs on cheerleading uniforms – – stripes, chevrons, zigzag patterns, and the like.  Star Athletica made uniforms with very similar designs, prompting Varsity to sue Star for copyright infringement.

Much confusion existed in the Circuits as to the scope of IP protection for design elements in fashion apparel. And so, the case made its way to the top court.  Writing for the majority, Judge Clarence Thomas announced:

[A] feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.

The majority found that, while the design elements were integral to a purely functional item of apparel, the designs enjoyed “pictorial graphic or sculptural qualities” which, in effect, if imagined in a medium other than clothing could qualify as works of art capable of copyright protection.

Insurers writing broad form advertising injury coverage have been plagued with claims across many industries. But now it seems that the fashion industry is a fair target for infringement and advertising injury claims. And that’s it for this This and That. But if you care to predict the Open champs or share your views on appropriate tennis apparel, please call or email Dennis.