images (1)Full disclosure: intellectual property and copyright issues are not my favorite subjects. The whole area is messy, murky, confusing, and often seemingly arbitrary, and that’s before you even open up the can of worms that is digital design and 3D printing. I’m not the only one who feels that intellectual property law is a convoluted mess, though, and several prominent organizations have recently banded together to ask the Supreme Court to please make up its mind on what constitutes IP violation.

It all stems from a case entitled Star Athletica v. Varsity Brandsin which the former was accused by the latter of copyright violation. Star Athletica, designer of cheerleading uniforms, released a design that was quite similar to one produced by Varsity Brands’ subsidiary Varsity Spirit, who cried foul. Star Athletica replied that Varsity Brands’ zigzagging design couldn’t be copyrighted, because it’s a basic design that marks a cheerleading uniform as being a cheerleading uniform, rather than any ordinary skirt and top. Therefore, said Star, the design is more functional than decorative.

Why does that matter? Functional or utilitarian objects cannot be protected under copyright, while decorative objects can. The issues for courts lie in determining whether an item is utilitarian or decorative, and what to do about items that have both utilitarian and decorative components. (See why I hate this?) When Shapeways got wind of Star Athletica v. Varsity Brands last year, they began following the case with interest, as although it has nothing immediately obvious to do with 3D printing, it’s an excellent example of the issues that so commonly arise around 3D printing and intellectual property.

cheerleading_sixth_circuit

For example: say you design a very basic 3D printable coat hanger and start selling it online. Later, you see that another site is selling a basic 3D printable coat hanger that looks very similar to yours. Screaming “copyright violation” is ridiculous, because it’s a coat hanger. I have dozens of them, from different manufacturers, and they all look pretty much the same: a triangular frame that holds clothes and ends in a hook that goes over the closet rod. That basic shape is required for the hanger to serve its designated function.

However, if you design a fancy coat hanger with a hook shaped like an articulated swan head with embossed feathers, and you see that design being sold on another site, then you have a case. A swan head is not necessary to the function of a coat hanger, and thus is considered an artistic element, which can be copyrighted – though the hanger itself can’t. Fun, yes?

The decision that the courts finally reached was based on a concept known as severability, which is the idea that the decorative aspects of an object can be separated from the utilitarian part and protected separately. Shapeways wrote an excellent rundown of the case, but to put it as succinctly as possible: Varsity Brands claimed that their designs were severable from the utilitarian cheerleading uniforms and could thus be copyrighted, while Star Athletica said nope, these zigzags and things are what make it a cheerleading uniform, so it’s still utilitarian and can’t be.

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Yay Varsity Spirit! [Image: Varsity Spirit]

The court ultimately ruled in favor of Varsity Brands, stating that the color blocking, zigzags, and chevrons on the uniforms could be seen as independent of the uniform itself, and that “conveying information” (i.e., conveying that yes, this is a cheerleader uniform) doesn’t count as functionality. The court used a five-part test it designed itself to come to its final conclusion, but, Shapeways points out, there are about ten different tests currently being used to determine severability, and they all say something a bit different.

Enough is enough, Shapeways said; it’s hard enough to navigate tricky intellectual property issues without the courts being inconsistent. In February, they approached the Supreme Court and urged them to come up with a single, clear test for determining what can and can’t be copyrighted, citing Star Athletica v. Varsity Brands as an example of the necessity of doing so. In May, the Supreme Court agreed to take a look at the case.

This week, Shapeways announced that they have signed on to a brief written by Charles Duan and Meredith Rose from Public Knowledge, along with several other organizations that regularly deal with intellectual property issues, including:

The brief makes a simple request – pick one test, one that’s simple and clear enough for the general public to understand, and stick with it. According to Shapeways, the court will schedule oral arguments over the next few months, with a decision hopefully reached by sometime next year. You can read the full brief here. Discuss further in the Cheerleading Copyrighting Case forum over at 3DPB.com.

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