On Halloween, the US Supreme Court ponders costumes

The eight justices have been asked to define copyright limits in an usual case that poses the question: Can the design of a cheerleader’s outfit be protected by rights of authorship?
The dispute is more substantive than it appears, pitting Star Athletica against Varsity Brands, both manufacturers of clothing for young athletes — or in this case cheerleaders.
A beloved feature of the US sporting scene, cheerleaders have been exciting fans at American football, baseball and other games for more than 120 years.
Varsity, the market leader, accuses its smaller rival Star Athletica of copying certain of its cheerleader costumes.
According to federal law, a design can be protected by copyright if it can be distinguished as separate from the article’s function.
In this case, Varsity insists that the chevron pattern on the tops and skirts of its cheerleading outfits is a conceptual creation separate from the uniform’s function. Star Athletica maintains the opposite.
The court’s challenge will be to draw the line between the aesthetic and utilitarian, creating a framework for deciding whether a copyright for design is valid.
The decision could have broad repercussions with significant economic consequences.
The dispute is particularly concerning to devotees of “cosplay,” who dress up in costumes that borrow from characters in Japanese manga comics, video games and other spheres.
Cosplayers often appropriate costume elements that could be legally protected: uniforms, military insignias, logos and so on. They fear the Supreme Court may squelch their creative freedom.
Philip Gust, president of the International Costumers Guild, says costumers tap into design elements that are common to all kinds of genre — sci-fi/fantasy, comics, anime and historical garments.
“Suppose that Desilu Studios tried to protect the original Star Trek costumes by copyrighting every conceivable type and arrangement of sleeve braid and geometric insignia shapes on the three solid colors used for the shirts in the series,” he said.
“Every sci-fi space pilot from Buck Rogers to Battle Star Galactica has similar elements,” he said.
“Varsity is trying to treat arrangements of geometrical shapes that just happen to be the ones on cheerleading costumes as separable works of art, but in fact, they’re no more separable than the elements of the Star Trek shirt,” he said. “Mondrian must be rolling in his grave.”
Sudan Scafidi, founder of the Fashion Law Institute at Fordham University’s law school, disagrees.
For her, the real danger is that the Supreme Court will weaken “the little bit of copyright protection that US law offers to fashion.”
She notes that US copyright law protects fabric patterns but not the three dimensional costumes themselves, and then only original creations.
“There is zero possibility that this case — or any proposed change in US copyright law — would affect access to common elements of a fashion genre or to historical costumes, which are already in the public domain,” she said.
“A costume designer who wants to recreate a medieval knight or a 1920s flapper is and will remain free to do so, no matter what the Supreme Court decides.”
Supreme Court cases generally feature two antagonists, each backed up by their “amicis,” from the Latin phrase for “friends of the court,” who submit briefs arguing for or against one side or another.
Among those submitting briefs in this case is The Royal Manticoran Navy (TRMN), a fan club inspired by David Webber’s Honor Harrington science-fiction series.
Members organize themselves in hierarchical fashion, dressing in a variety of nautical uniforms.
“This issue is larger than just cheerleading uniforms, and can have an impact well beyond the main parties in the case,” said the fan club’s president and chairman Martin Lessem.