The US Supreme Court said yesterday it will hear a case between two cheerleader uniform suppliers that could affect the state of copyright nationwide.In 2010, Star Athletica published its first catalog of cheerleading uniforms and was promptly sued. Varsity Brands, the world's biggest manufacturer of cheerleading and dance-team uniforms, alleged that Star Athletica's uniforms violated Varsity's copyrighted designs.

The clothiers' conflict could have wide effects in the fashion world and beyond. A trio of 3D printing companies have already filed an amicus brief asking the high court to take the case, seeking clarity on how to separate creative, copyrightable designs from utilitarian objects that aren't subject to copyright.

The case below

Star argues that Varsity's copyrights were on utilitarian elements of the uniforms, and thus shouldn't be allowed. The US has never allowed copyrights on "useful articles," and that's long been held to include clothing. Star won its case in district court, but a split panel at the US Court of Appeals for the 6th Circuit overturned the win, siding with Varsity.

In its petition (PDF) to the Supreme Court, Star said the appeals court decision "exacerbates a circuit split and defeats Congress's well-recognized denial of copyright protection to garment designs or uniforms, despite lobbying by the garment-design industry for more than a century."

If the 6th Circuit decision isn't overturned, "industrial designers can claim copyright protection... for pleats on tennis skirts, button patterns on golf shirts, and colored patches on rugby uniforms," says Star Athletica.

Circuit courts, the US Copyright Office, and academics have created "at least nine different tests" to separate copyrightable content from utilitarian. "The Sixth Circuit rejected them all and created a tenth," write Star Athletica lawyers.

Star Athletica also complains about Varsity's aggressive tactics, noting it has sued or acquired several other competitors. "The net result is inflated uniform prices, to the detriment of families everywhere," the petition states.

Art vs. function

As the district judge saw it, it's impossible to sever the Varsity designs from the "utilitarian function of the resulting cheerleading uniforms." A similarly shaped outfit "without team colors, stripes, chevrons and similar designs... is not recognizable as a cheerleading uniform."

The appeals panel disagreed, finding no utilitarian function in Varsity's stripes and chevrons. "A plain white cheerleading top and plain white skirt still cover the body and permit the wearer to cheer, jump, kick, and flip," wrote the two-judge majority. "The top and skirt are still easily identified as cheerleading uniforms without any stripes, chevrons, zigzags, or color-blocking."

An amicus brief (PDF) filed by 3D printing companies Formlabs, Matter and Form, and Shapeways asks the Supreme Court to take up the matter to provide clarity on where to draw the line on "conceptual separability" between what is and isn't copyrightable.

3D printing is a "revolutionary process" that's transforming industry, the brief states. While some objects are clearly copyrightable and others aren't, there's also a lot of gray area—and the tests aren't clear.

Printed objects that are "purely ornamental and nonfunctional," like sculptures and jewelry, are clearly copyrightable. Designs that are "purely functional," like a wrench, are not. But "a significant percentage of 3D printed objects combine utilitarian and artistic elements in complex ways," and the 3D printing companies would like a clear test so they know what their liability is.