page_title: Star Athletica, LLC v. Varsity Brands, Inc.
section_title: Concurrence
hierarchical_section_title: Star Athletica, LLC v. Varsity Brands, Inc. / Opinion of the Court / Concurrence
caption_attribution_description: English: Page 6 of the concurring opinion of Justice Ruth Bader Ginsburg in Star Athletica, L. L. C. v. Varsity Brands, Inc., in which she points out that the designs were copyrighted as 2-dimensional artwork in filings with the U.S. Copyright Office, which supports the reasoning of her opinion.
context_page_description: Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. ___, was a Supreme Court of the United States case in which the Court decided under what circumstances aesthetic elements of "useful articles" can be restricted by copyright law. The Court created a two-prong "separability" test, granting copyrightability on conditions of separate identification and independent existence. In other words, the aesthetic elements must be identifiable as art if mentally separated from the article's practical use and must qualify as copyrightable pictorial, graphic, or sculptural works if expressed in any medium.
  The case concerned a dispute between two clothing manufacturers, Star Athletica and Varsity Brands. Star Athletica began creating cheerleading uniforms with stripes, zigzags, and chevron insignia similar to some made by Varsity, produced at a far lower price point. Varsity sued Star Athletica for copyright infringement and Star Athletica claimed the clothing designs were uncopyrightable because their aesthetic designs were tied so closely to and guided by their utilitarian purposes as uniforms.
context_section_description: Justice Ginsburg wrote an opinion concurring in judgement—the cheerleading uniform designs were separable—without joining in the majority's reasoning. The copyrights were not registered for the useful articles of clothing, emphasized Ginsburg. The registrations were for pictoral and graphical works that were then reproduced on the clothing. Because the Copyright Act of 1976 provided copyright claimants "the right to reproduce the work in or on any kind of article, whether useful or otherwise," the claimant of a pictorial, graphical, or sculptural work's copyright could restrict others from reproducing the work's elements on their separate useful articles. According to her, there was no need for the court to address the separability analysis issue at all. To prove her point, Justice Ginsburg attached to her decision several pages of applications submitted by Varsity Brands to the Copyright Office, pointing to their claimed type of work being "2-dimensional artwork" or "fabric design (artwork)."
  In the concurrence's notes, Ginsburg mentioned that she also did not take a stand on whether or not Varsity's designs were actually original enough to be copyrightable. Nonetheless, she did refer to a previous case called Feist Publications, Inc., v. Rural Telephone Service Co. and quoted its conclusion that "the requisite level of creativity [for copyrightability] is extremely low; even a slight amount will suffice."
caption: One page of the 11-page appendix to Justice Ginsburg's opinion, which highlighted that the designs were registered with the U.S. Copyright Office as "2-dimensional artwork"
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