The US Supreme Court pon­ders cos­tumes

Kuwait Times - - LIFESTYLE -

In a happy co­in­ci­dence of the US ju­di­cial cal­en­dar, the Supreme Court on Hal­loween yes­ter­day is set to solemnly take up the sub­ject of cos­tumes and out­fits. 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.”

The Royal Man­ti­co­ran Navy

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 caseor 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. — AFP

This file photo taken on Oc­to­ber 29, 2016 shows peo­ple in cos­tume in the Ge­orge­town neigh­bor­hood of Wash­ing­ton, DC for Hal­loween cel­e­bra­tions. — AFP

This photo taken Oc­to­ber 29, 2016 shows peo­ple in cos­tumes of US pres­i­den­tial can­di­dates Hil­lary Clin­ton (L) and Don­ald Trump (R) ges­tur­ing as they take part in a Hal­loween pa­rade in Tokyo. — AFP

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