Every autumn, at my high school in New Orleans, for many, education was made to stand in line behind football. Ordinarily, in the heat and humidity of The Big Easy, any kind of activity beyond that needed to populate bars and strip clubs was considered unnecessary and even dangerous. (The older brother of a good friend died of heat stroke from playing high school football.)
And yet football, that proud exception to the rule, was worshiped every autumn. If the players were the priests of this brawny faith, what did that make the cheerleaders? The nuns? For their habits, the girls wore blue and yellow uniforms that were both comfortable and amenable to much athleticism, the requirements for the job being lots of jumping, pom-pom pushing and the occasional lift and twist into a fully inverted position. The garments were not all that successful in wicking away moisture, and the girls made quite an effort to maintain the required posture of irrepressible enthusiasm—while battling cascading perspiration.
That comes to mind as we consider that the Supreme Court has just agreed to hear an appeal from a copyright case about cheerleader uniforms: Varsity Brands, Inc. et al., v. Star Athletica, LLC. The Supreme Court rarely accepts copyright cases—it will accept one every few years—and barely will the decision have been announced before a cascade of articles by professors, lawyers, law students and the lay press will appear to interpret it and opine on its implications for the freedom of expression and the business of expression.
As the case currently stands, the Court of Appeals for the Sixth Circuit, in an appeal from a district court in western Tennessee, has ruled that simple designs on cheerleading uniforms consisting largely of “stripes, chevrons, zigzags, and colorblocks” are protectable by copyright. The court noted the basic rule, which we have discussed on these pages, that, “the Copyright Act protects fabric designs, but not dress designs.” The court went on to say, “Because we believe that the graphic features of Varsity’s cheerleading-uniform designs are more like fabric design than dress design, we hold that they are protectable subject matter under the Copyright Act…as pictorial, graphic, or sculptural works.” Functionality, such as wicking away all that perspiration, proved not to be a consideration for the court.
The court also rejected the argument of the defendant that the designs in question simply represented by the cheerleading uniform should be unprotected. There are just so many ways to make a uniform for an adolescent girl look like she is a cheerleader by the uniform alone—without, that is, making her shake her pompoms until you get the point. Although there may indeed be characteristics common to most cheerleading uniforms, those stripes, chevrons, zigzags and colorblocks, when sewn into a dress, were sufficiently unique as to warrant protection as a copyrightable design.
What the Supreme Court will be reviewing is quite specific: the standard employed by the court in determining how to separate (only conceptually because it cannot be removed physically in these fashion cases), a two-dimensional design from the functional garment on which it is placed in order to examine whether it is protectable by copyright. The lower court previously examined nine such standards (or “tests,” as they are often called) that have been floated or actually used and then went on to adopt one of its own invention, formed around five questions it asked itself.
The adage that the Supreme Court does not accept cases in order to affirm them may possibly apply here, but with its own tenth test now on the books (by the Sixth Circuit’s reckoning), it also seems quite possible that we will either be seeing the embrace of one of the prior nine or will be presented with an eleventh that will potentially replace all its predecessors nationwide.
And that, in short, throws open for speculation whether, in applying the test the Supreme Court will enunciate, the lower courts will still hold that uniform designs such as those at issue in this particular case are subject to copyright protection. Whatever the outcome on that point, the general rule does not appear in any way in danger: at least for the purposes of copyright, in the USA, copying a dress pattern (but not necessarily the pattern of the fabric itself) is largely permissible. The rest, as in so much about both fashion and law, is all about the details.
Credit: Alan Behr
You hired the photographer to take pictures of your products, store, showroom or event. You would think that if you paid for the photographs and told the photographer what to shoot, you’d be entitled to use the images however you wanted. But you might be wrong.
Photographs are protected by copyright. Commissioning the creation of photographs and paying the photographer to take them does not give you ownership of the copyright in the photos. Under the copyright law in effect since 1978, the photographer owns the copyright in the photos. In the absence of a written agreement to the contrary, the party hiring the photographer acquires only the prints purchased and a non-exclusive right to use them for a particular purpose.
Photographers are often hired to take photographs, based on a cost estimate, without legal formality. The only writing that may change hands is the photographer’s invoice, which is duly paid, without examination of anything except the price. Pre-printed terms and conditions on the reverse side of the invoice commonly indicate the photographer retains any rights that are not expressly granted and may limit use of the photographs. If you acquire only the right to use the photographs in a catalogue, to cite just one example, you may not be able to use them in advertisements, or on your website, or on packaging, without further permission from the photographer.
And that’s not all. Not only can you not use the photos without the photographer’s consent, but also photos taken at your expense can be licensed by the photographer for use by others. Most professional photographers pursue additional income by licensing their photographic images for use in newspapers, magazines and books. Only a written assignment of copyright or exclusive rights can prevent the photographer from allowing others to use the photographs.
The consequences of not using a written contract to secure ownership of commissioned photographs can be especially severe when the relationship ends. Wal-Mart Stores and the Walton family learned this lesson when the local photographers’ studio that had photographed Wal-Mart and Walton events for over forty years closed. Their photo archives were put up for auction by the photographers’ heirs, along with the copyrights in the images. The Walton family and Wal-Mart Stores found themselves in litigation in an effort to obtain the photo archives for their museum, litigation that is still on-going.
Credit: Helene M. Freeman
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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.