On October 31, 2016, the Supreme Court of the United States (SCOTUS) deliberated chevron, zigzag, and stripe designs on cheerleader uniforms.  What is very likely to be a landmark decision, Star Athletica v. Varsity Brands addresses the issue of copyright protection for designs on clothing, long held in some controversy by courts attempting to decipher myriad tests and prior decisions.  The issue stems from the fact that clothing is inherently a useful article, one with a utilitarian function that is not merely to portray its appearance or convey information about it, and useful articles are not protectable by copyright.  Designs of useful articles can only be covered by copyright if they are pictorial, graphic, or sculptural features that can be physically or conceptually separated from the useful article.

Varsity Brands, which registered copyrights for its cheerleading uniform colored chevron, zigzag, and stripe designs, argued before the SCOTUS such designs were eligible for copyright protection because they could be conceptually separated from the utilitarian aspects of the uniforms themselves.  In contrast to physical separability, the copyrightable design elements do not have to be actually separable from the useful article to be protected under the test of conceptual separability, but do have to be able to be perceived as separate works worthy of copyright protection when considered disparately from the useful article to which they are attached.  Unfortunately, the test for conceptual separability has greatly varied among courts to date, causing the copyright eligibility of apparel to be in constant doubt.  During the oral arguments by the parties, the SCOTUS leaned heavily on the negative implications and possible extremes of granting such protection, including concerns over monopolies, line-drawing related to whether a design defines the article it is on or stands alone, and the always-popular slippery slope of increased litigation.

What the legal community is hoping for from the SCOTUS decision is a definite test for conceptual separability of copyright-eligible designs on useful articles, which would be momentous not only for the fashion industry, but for multitudes of commercial endeavors that blend function and design (furniture, vehicles, jewelry, 3D printing, etc.).  Given their worries and evident biases thus far in oral arguments, however, the Justices may also decide the case, but fail to articulate a legal framework for the future, in which case the conceptual separability doctrine will continue to subsist in controversy.  One way or another, the development is one to watch.

In ways the legal world is still struggling to comprehend and solidify, social media has an influential role to play in defining modern and future copyright law.  While seemingly quite ordinary for the lay user, the ability to instantaneously publish intellectual property on the Internet has deep ramifications for copyright authorship, ownership, and exclusive rights.  In addition, the availability of so much intellectual property online greatly contributes to the modern culture of repurposing, rehashing, and reimagining old works into new versions.

In September 2014, the artist Richard Prince was recognized with an installation in the Gagosian Gallery in New York.  Prince is primarily known for his artistic projects that involve altering others’ previously-taken photographs.  Most famously in 2013, Prince’s changes to a collection of photographs of Rastafarians in Jamaica taken by Patrick Cariou escalated into a copyright infringement case that arose in front of the Second Circuit, Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).  However, the court decided that Prince’s alterations were sufficiently transformative so as to constitute fair use in defense to Cariou’s copyright infringement claim.  For the 2014 New Portraits collection, Prince saved screenshots of strangers’ self-portraits on Instagram, added one or more comments in typical Instagram fashion, and blew them up to poster-size on canvas, selling them for $90,000 each.

Though outrage has been expressed by some of the individuals who have found their portraits on the gallery walls, no legal suit has yet been instituted.  Nevertheless, Prince’s New Portraits, even more so than his previous endeavors, reveals some of the possible cracks in modern copyright law.  How transformative use, or the addition of new expression, new purpose, or new aesthetic to a preexisting, figures into the general four-factor analysis of fair use is still debated.  At first, it seems that transformation should be considered when analyzing the purpose and character of the use alleged to be fair under the first factor, but as suggested by the decision in Cariou v. Prince, transformative use may actually be a fifth factor or a separate test for fair use altogether because of how determinative it can be.  There also persists the issue of how transformative is transformative enough, and the envelope on the “I will know it when I see it” approach is constantly being pushed by new artists such as Prince.  In Cariou v. Prince, Prince added paste-up magazine pictures and paint to Cariou’s photographs and labeled them transformative.  For New Portraits, Prince only added one or two Instagram-style comments, many less than five words long.  Deeming such alterations transformative would certainly have serious implications for authorship and fair use on social media platforms.  Is literal commentary on an original work transformative of that work?  Can every retweet, repost, or comment be considered a fair use, in that case?  Perhaps there are even more bright lines yet to be drawn, wherein some comments will be sufficient to transform the originally posted work, provided they are of satisfactory length or content, but others will be disqualified.

Moreover, this is an age when virtually everyone is a copyright author with every photograph or comment posted online, and yet, it is not unreasonable to assume that practically no one registers a copyright for such works.  When those works are repurposed by others, what recourse do the original authors have, and how do they resolve the multitude of copyright ownership issues that would arise?  Also, how should authors and courts consider the fact that artists like Prince are making money from these works, which is an issue largely dismissed by courts to date?  On the other hand, perhaps social media users should simply reconcile themselves with the fact that their words and their pictures will inevitably be reused and recast, that they are relinquishing rights by posting their works online, and that courts may not require much to find fair use.  Maybe this is the new nature of copyright, or maybe courts are still struggling to make old definitions of copyright fit the new creative status quo.