Cheerleaders (Flickr)

The Supreme Court of the United States is pontificating on the ever-arguable question of copyright in the fashion industry.

The  Star Athletica LLC v. Varsity Brands Inc.  case is about stripes, chevrons and zigzags and whether these design elements are a copyright.

In this case of cheerleaders’ design brands, Star Athletica has been accused by Varsity Brands, a leading brand for cheerleading uniforms, of infringing on their stripes, chevrons and zigzag designs made to look the wearer slimmer.

Star Athletica contends that Varsity Brands has made a  business of copyrighting hundreds of designs and photos of cheerleader uniforms and suing competitors for infringement of  copyrights for carrying similar designs.

Lower court rulings have not been very clear on what constitutes copyright, especially in the fashion industry. Star Athletica stated in their petition to the Supreme Court that such rulings put the entire $330 billion per year U.S. apparel industry into jeopardy.

“When you’re talking about these cheerleader uniform designs, the arrangement of the color blocks and the chevrons and the stripes, if you made it smaller and put it in the center of a uniform, it would no longer have the slimming effects,” said John J. Bursch, representing Star Athletica, reports the Scotus blog.  “It wouldn’t make the wearer look taller.”

Bringing in supportive arguments regarding a Stella McCartney dress on Kate Winslet in 2011 which saw many knock offs, Bursch said, “”She’s got those slimming, dark lines along the sides that change how she is perceived. It makes her shape look different to someone who is looking at her, and the lines on these uniforms do the exact same thing. Similarly, … in these uniforms you’ve got the waist-narrowing ‘V’s on the sides. It creates the optical illusion that the wearer is thinner than they actually are, slimmer.”

Underlying the whole argument is what constitutes a copyright infringement. Logos, images, and even particular designs and fabrics can be patented and copyrighted. It is for the same reason that monogrammed bags and accessories are so sought after. A Jimmy Choo design and Manolo Blahnik red- heeled shoe are distinguishable from others.

However, design elements that are considered functional cannot be exclusive or copyrighted. Hence, one can have an exact replica designer bag or scarf but minus the distinguishing brand, logo or monogram.

Varsity’s side pointed out that clothing can serve more than once purpose: “One is conveying the information that someone is a cheerleader—identifying someone as a cheerleader; and the other is affecting the viewer’s perception of the wearer’s appearance.”

The esteemed judges themselves had some observations to make about the functionality aspect and copyrights and patents in the fashion industry and how far they can be taken.

“The clothes on the hanger do nothing,” Justice Stephen Breyer said during deliberations. “The clothes on the woman do everything. And that is, I think, what fashion is about.”

Justice Sonia Sotomayor , another judge sitting on the case said, “You’re killing knockoffs with copyright,” according to the New York Times. “You haven’t been able to do it with trademark law. You haven’t been able to do it with patent designs. We are now going to use copyright law to kill the knockoff industry.”

But what constitutes functional or not is the grey area and this is what the highest court is deciding upon.