U.S. Supreme Court cites Notre Dame Law Professor’s Work

Author: Kevin Allen

Mark Mckenna 1 1Professor Mark P. McKenna

U.S. Supreme Court Justice Stephen Breyer cited two pieces of Notre Dame Law School Professor Mark P. McKenna’s work last week when he wrote the dissenting opinion in Star Athletica v. Varsity Brands, a case that examined the question of whether artistic features on clothing deserve copyright protection.

The case involved a copyright infringement lawsuit that Varsity Brands filed against competitor Star Athletica. Varsity claimed that Star used Varsity’s designs – such as stripes and chevrons – on the cheerleading uniforms in its 2010 catalog.

In a 6-2 vote, the Supreme Court ruled in Varsity’s favor that artistic features on clothing deserve copyright protection if they can be separated from the article of clothing and still qualify for protection on their own.

But Breyer, who was joined by Justice Anthony Kennedy in disagreeing with the court’s majority, said that design features in the cheerleading uniforms cannot exist independently of the uniforms.

Breyer cited a friend-of-the-court brief that McKenna, a professor of law and associate dean for faculty development at Notre Dame Law School, drafted with three other law professors – Mark Lemley of Stanford University, Christopher Jon Sprigman of New York University, and Rebecca Tushnet of Georgetown University. In the brief, the professors argued against copyright protection for the design features and encouraged the court to limit copyright protection in that context to applied art.

Breyer also cited an academic article that McKenna wrote with Katherine J. Strandburg of New York University. The article, titled “Progress and Competition in Design,” was published in 2013 in the Stanford Technology Law Review.

McKenna said the example that has traditionally been used in this area of law is that a flower carved into the back of a chair would still be recognized as a flower whether it was on a chair, on a poster, or on a piece of clothing. That type of design has always been protected under copyright law.

“The hardest cases are always features that you can’t easily extract that way,” McKenna said. “In this case, they’re lines on a cheerleading uniform. Without the uniform, they’d be abstract lines.”

The court’s decision in Star Athletica v. Varsity Brands is a victory for fashion designers and a setback for companies that specialize in knockoffs of more expensive brands.

McKenna said the likely result is that companies in the fashion industry will enforce copyrights on the art used in their products.

“We could see more use of copyright in the fashion area,” McKenna said. “We’re likely to see much heavier claiming of these things than had been the practice.”

Originally published by Kevin Allen at law.nd.edu on March 29, 2017.