Professor McKenna Files Amicus Brief in Star Athletica v. Varsity Brands

Author: Lauren Love

Mark Mckenna Profile

Mark P. McKenna, professor of law and associate dean for faculty development at Notre Dame Law School, recently filed a friend-of-the court brief in the U.S. Supreme Court in Star Athletica v. Varsity Brands, a case concerning the copyrightability of the design of cheerleading uniforms. The Court will hear arguments in the case this fall.

“It’s an unusual case, but one that could have far-reaching effects,” McKenna said.

At issue is an August 2015 ruling by the United States Court of Appeals for the Sixth Circuit, which held that certain features of cheerleading uniforms, particularly the chevrons that decorate the uniforms, could be protected under federal copyright law. One judge on that court disagreed, arguing that those features were more than aesthetic touches – and, in fact, made the outfit a cheerleading uniform.

The amicus brief, drafted by McKenna, Mark Lemley, professor of law at Stanford University; Christopher Jon Sprigman, professor of law at New York University School of Law; and Rebecca Tushnet, professor of law at Georgetown, argues against copyright protection for the features and urges the Court to limit copyright protection in this context to applied art.

“Our brief argues that Congress intended the useful articles doctrine to operationalize a distinction between applied art and industrial design,” McKenna said. “Specifically, Congress meant to offer copyright protection to features of useful articles only when those features could stand alone as distinct copyrightable works, even if extracting the features from the useful article to which they are applied would physically destroy the article. For example, a carving in the back of a chair might be protectable because that carving could be reproduced on a poster and stand apart from the chair as a separate work. The chair’s legs, on the other hand, cannot stand alone as a separate work no matter how aesthetically pleasing their design. Those kinds of features should be protected, if at all, by design patent. Courts could bring considerably greater clarity to this difficult area of law by embracing this distinction between applied art and industrial design— which is the one Congress intended.”

Many will be watching the decision of this case — especially those in the fashion industry. Any change in the standard of copyrightability could have widespread implications, especially for companies that specialize in knock-offs of expensive creations.

McKenna teaches and writes in the area of intellectual property. A leading scholar in the trademark area, he has published numerous articles in leading law journals on the topic of trademark law as well as on design patent, copyright law, the right of publicity and the intersection of intellectual property rights regimes.