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One Two Three! What's Copyright For?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Cheerleading designs.jpg

Visual Image Protection: The U.S. Supreme Court has agreed to hear the case, Varsity Brands v. Star Athletica, discussed in an earlier post, namely, the decision of the Sixth Circuit Court of Appeals that recognized copyright protection for relatively ordinary cheerleader uniforms. The uniforms in question featured the usual variations of chevrons, lines, and shapes (see examples above).The fundamental problem is that copyright protection is not available for "useful articles," as is the case with any clothing, except where it's shown the non-functional design elements are sufficiently "original" and conceptually "separable" from the utilitarian features of the article.

The dissenting judge in the last opinion noted that there were already nine different tests that various courts had used to define what "conceptual separability" is. Nevertheless, the Sixth Circuit court created a tenth test. If the Supreme Court drafts an eleventh, that will be the same size as a football team, but it won't be anything to cheer about unless it becomes, as it should be, the one and only test to be applied.

The best cheerleaders are not only natural dancers but superb athletes, capable of performing perfect splits. Be forewarned, if the current Supreme Court remains in numerical limbo indefinitely with only eight Justices, they could end up with a 4-4 split on the cheerleader case, and that would be the jjudicial equivalent of a face plant.

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