March 23, 2017

Excerpt from the new Supreme Court opinion about the copyrightability of a cheerleader's uniforms.



Breyer dissented, if that helps.

Here's another excerpt:
... Van Gogh’s painting of a pair of old shoes, though beautifully executed and copyrightable as a painting, would not qualify for a shoe design copyright... Courts have similarly denied copyright protection to obects that begin as three-dimensional designs, such as measuring spoons shaped like heart-tipped arrows, candleholders shaped like sailboats, and wire spokes on a wheel cover. None of these designs could qualify for copyright protection that would prevent others from selling spoons, candleholders, or wheel covers with the same design. Why not? Because in each case the design is not separable from the utilitarian aspects of the object to which it relates.... [S]poons, candleholders, and wheel covers are useful objects, as are the old shoes depicted in Van Gogh’s painting....

[A] copyright on Van Gogh’s painting would prevent others from reproducing that painting, but it would not prevent others from reproducing and selling the comfortable old shoes that the painting depicts...

Consider Marcel Duchamp’s “ready-mades” series, the functional mass-produced objects he designated as art.... What design features could not be imaginatively reproduced on a painter’s canvas? Indeed, great industrial design may well include design that is inseparable from the useful article—where, as Frank Lloyd Wright put it, “form and function are one.”... Where they are one, the designer may be able to obtain 15 years of protection through a design patent.... But, if they are one, Congress did not intend a century or more of copyright protection....

Consider designs 074, 078, and 0815. They certainly look like cheerleader uniforms. That is to say, they look like pictures of cheerleader uniforms, just like Van Gogh’s old shoes look like shoes. I do not see how one could see them otherwise....

Were I to accept the majority’s invitation to “imaginatively remov[e]” the chevrons and stripes as they are arranged on the neckline, waistline, sleeves, and skirt of each uniform, and apply them on a “painter’s canvas,” that painting would be of a cheerleader’s dress....  Hence, each design is not physically separate, nor is it conceptually separate, from the useful article it depicts, namely, a cheerleader’s dress. They cannot be copyrighted.

6 comments:

Owen said...

What fun! I think this distinction between form (aesthetic expression, protected by copyright) and function (protected by design patent) is pretty basic. Copyright is emphatically not about functional elements in a work, but about creative choices. Thus an essential plot (boy meets girl) is not going to get protected, but a particular variant (Capulet meets Montagu) might, and the exact chosen words of Romeo and Juliet almost certainly would.

Here, it seems design patent protection would be appropriate. One reason not to apply copyright protection is that it has become so monstrously long-lived. Congress sold out to Disney, and made copyright "too strong." If its term were returned to 14 or 28 years, money would still be made, but more fruitful innovation might also occur.

Kevin said...

Cheerleader's dress? You're racking up a lot of assists to Laslo. The key will be for him not to take the easy layup but use the open floor to create a monster dunk.

Patentlee said...

A design patent covers ornamental features of a product and a utility patent covers the functional features.

James Pawlak said...

“. . . full of sound and fury,
Signifying nothing.” Macbeth

“. . . speak an infinite deal of nothing.” The Merchant Of Venice

"The first thing we do, let's kill all the lawyers." Henry V (Part two)

EDH said...

What the article didn't mention was that Ruth Bader Ginsburg was chosen by the court, per curium, to model those cheerleader outfits.

Roger Sweeny said...

Yet another example where Congress should CLARIFY THE D-M- LAW instead of forcing courts to do this crap. But then they would have to TAKE RESPONSIBILITY, which would cause some people to GET MAD. So the odds are pretty long.

Yeah, it really bothers me.