Justice Stephen Breyer Discusses “Star Athletica”, Fast Fashion, and Copyright Law

Written by Shayna Toh.

At a lunch talk on Wednesday, March 12th, co-hosted by the Journal of Sports and Entertainment Law, the Harvard Fashion Law Association, and the Intellectual Property Law Association, Justice Stephen Breyer joined Professor William Fisher in a discussion about his dissent in Star Athletica v. Varsity Brands and the broader implications it brings to copyright and trademark law.

Justice Breyer began by discussing the origins of copyright law, which stemmed from an agreement made by Thomas Jefferson and James Madison allowing the right to exist for 14 years. After developments such as the Mickey Mouse Protection Act, the length of copyright has since been extended to around 100 years, creating issues of use today. “What happens if a high school orchestra wants to play Stravinsky or Shostakovich?” Breyer asked. “How do we get copyright there? It doesn’t all belong to ASCAP.”

In Star Athletica, a dispute about similarly designed cheerleading uniforms manufactured by two different brands, the Supreme Court ruled 6-2 that the specific design elements on a uniform can be protected under copyright law if it was separable from the useful article (i.e. articles with utilitarian functions, such as clothing or furniture). Justice Breyer wrote the dissenting opinion, in which he stated that while he agreed with this rule, he did not think the uniforms at hand were separable from the uniform’s utilitarian function as a piece of clothing and were thus not copyrightable. 

“I thought it was just as much the cut of the clothes as it was the color of the fabric. It’s a useful object for clothes,” he said. “You can’t copyright the useful object.”

Justice Breyer took the crowd through the different examples he cited in his dissent of what he believed was and was not separable, including the shoes in the famed Vincent Van Gogh painting, or the shovel in Marcel Duchamp’s “In Advance of the Broken Arm.”

Justice Breyer also explained that the heart of the disagreement he had with Justice Thomas, who wrote the majority opinion, lay in the fact that while Justice Thomas believed that the designs on the cheerleading uniforms could be perceived separately, he did not.

However, he acknowledges that unlike most dissents, he shared many similar thoughts with the majority. As Professor Fisher noted, Justice Breyer did not warn that Justice Thomas’ test would unleash copyrights in the fashion industry in an excessive manner. 

“They are on the right track and I admit that this is a close case. I just don’t want to apply it any further,” Justice Breyer said.

Professor Fisher then discussed Justice Breyer’s utilitarian understanding of copyright and how it would interact with the developments of the fashion world. Quoting research from Christopher Sprigman, he explained how copyrighting makes designs commonplace, decreasing their value, but in turn creates demand for new innovative designs. For the fashion industry, this perpetuates the fashion cycle and compels designers to constantly innovate.

However, with the rise of fast fashion, the speed at which new designs can be manufactured potentially complicates this cycle. The copying starts earlier in the cycle at a time where the design is at its peak popularity, thus corroding the initial period where designers can sell premier designs at high prices. To mitigate this, there is a need for advanced legal protection.

The two later discussed the differences between American and European approaches to the utilitarian perspective. They then concluded by taking some questions from students, which included questions about the parallels between fast fashion and cultural appropriation and the differences between obtaining trademarks and copyrights in fashion.