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Form vs. function: Supreme Court looks at … cheerleading uniforms?

The world of copyrights, most specifically considerations surrounding what qualifies for legal protection, makes for an interesting universe.

And that universe has just offered up what a Bloomberg article from last week terms "a fascinating copyright case" that goes to the heart of design versus utility, which is a fundamental distinction and measuring stick used in evaluating copyright claims.

Utility means, well, usefulness. Under copyright law, protection will not be given to a useful object, because doing so would make for bizarre and straitjacketing outcomes. A chair is useful. A soccer ball is useful. Giving one entity intellectual property rights over such things simply wouldn't make sense.

But take that soccer ball and add a swoosh to it. That is a design (form) element that does not relate in any matter to utility. In a sense, it is art, and art can be protracted. Where that swoosh is concerned, think Nike, which has made a fortune off that mark.

As Bloomberg notes, the United States Supreme Court recently agreed to consider a case on appeal that addresses the design versus utility dichotomy. Interestingly, it has done so in a case involving cheerleader uniforms.

What, if anything, inherent in such an article of clothing is clearly design related and eligible for copyright protection, and what is essentially woven into the fabric to such an extent that its usefulness makes it ineligible for protection?

That might seem an easy call in some instances, such as where the logos of pro sports teams are stitched into clothing. Remove them and the clothing is still functional and capable of use.

Where should the line be drawn, though, when it gets a bit murky regarding whether design/form elements actually go to the heart of utility? In the case now before the high court, justices will look at an appellate ruling pursuant to which it was determined that, while chevron and stripes are purely form related and thus eligible for protection, a garment's cut is useful and can be copied by any entity.

The Bloomberg piece terms the lower court's distinction "unsatisfying," calling a standard that views some design elements as being free of any utilitarian function and others as being inseparable from a thing's usefulness "conceptually incoherent."

The Supreme Court's task will be to tackle that incoherence and come up with a legal mantra that renders things a bit clearer.

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