Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. I don't think by them. They'll talk on their own and tell me that this isn't obvious. And some of your amicye brief seem to take that position that if all we're looking as is a picture of this color blocks and stripes, that it may be too obvious to qualify for copyright protection or not original enough, whatever. But my point is that they already have done that. They've taken the designs and not put it on a cheerleading uniform. They've put it on sweats. They've put it on both tops and bottoms. So what does that do for you? Sotomayor, let me respond to both of those points, the obvious in a second, first the other garments. To the extent they're putting it on other garments, if you look closely at those pictures, the design changes. It's not the same design anymore. And to the extent that it remains similar, it's because, for example, the warm-up jackets are putting those lines in the same place. So the great example of this is on page 21 of the Fromur and Bucufusco brief, where it is the Stella McCartney dresses on Kate Winslet. And she's got those slimming dark lines along the sides that change how she is perceived. It makes her shape look different to someone who's looking at her. And the lines on these uniforms do the exact same thing. Similarly, you've got in these uniforms, you've got the waist-nearowing these on the sides. It creates the optical illusion that the wearer is thinner than they actually are. Slimmer. You've got the Mueller-Lyer lines that Foller and Bucufusco have to write anything under your use of utility, under your definition of utility. Because my definition is- Sotomayor's form, I'm suspect, in most cases, every form gives something else an attractiveness to the purchaser. That's why you have designs of anything, even pictorial designs. We completely agree, and that's why it's so important that you focus on the statutory text, because under the exists independently requirement that we cite, this is right from Section 101, the feature cannot add to or change the utilitarian aspects of the useful article. So let's say that I've got a t-shirt with a happy face on it. And maybe that makes me look better because I appear happier. Well, that design has the same effect whether I'm wearing it on my shirt, my pants, my hat, or carrying it on my notebook. But here, these designs only work when they're on the article for which they were designed in the exact place where they were designed. I think- Q. Suppose you have a Picasso painting or Modarin or Clay, and it's supposed they're alive. And they licensed the use of their picture on a garment, and it does just what you say. This Picasso painting or Modarin just completely captures the shape of the article you want. The fact that it completely captures it and it means it can be copied

. K. No, it does not, because the Picasso- Q. The difference in Mondrian or Picasso and these lines. K. Because I could take the Picasso, and I could just have it in a frame on the chest, or I could expand it to the entire breadth of the uniform. With these designs, the sidelines have to be right here. The V's have to be right here. The Mueller-Lyer line has to be right here. And if you would move it, say, rotate that 45 degrees. You could do that with the Picasso, and it would still look like a Picasso. If you churned one of these designs 45 degrees, it would no longer make the cheerleader look taller and thinner. How is your argument different from this Tuxedo shirt that the government talks about its unpaid 10 of the government's brief? Yes. Where the lines really do have to be just in a particular place on the piece of a barrel in order for it to make any sense at all. And there, that was found to be copy-rightable. Is there any difference between the Tuxedo shirt and this? Well, there are differences. And I think even the government would tell you if you asked in that question that that that design wouldn't prevent you from making the Tuxedo. And what we're talking about here is making the cheerleader uniform, the actual three-dimensional cheerleader uniform that you wear. And that's the lesson of section one, section one, thirteen. No, but it prevents you from making this T-shirt with these lines on it in the same way that you are saying nobody should be able to make a short dress, but those particular lines in that particular place. The point is you can have a copy-right in that design. We don't contest that varsity has a copy-right in the design. We wouldn't contest in the hypothetical I use with Justice Ginsburg. You could have a copy-right in the camouflage design, but that copy-right doesn't extend to prevent you from making the useful article depicted. That's where the line stops. So I guess I'm not sure, does that mean if you can have a copy-right in the Tuxedo shirt design that somebody couldn't draw a Tuxedo shirt because that's copy-righted to the traditional? Right. Right. You could not replicate the design, but you could make the Tuxedo. That's the lesson of Jack Edelman in Section 1. But you're saying you couldn't make the Tuxedo shirt. Is that correct or you could? You could not. Let's take it back to the cheerleader uniform and then bring it back to the text of the statute

. We don't contest that varsity could take these designs and put it on a notebook, put it on a lunch box, put it on a hat, and no one could copy that. That's clearly within the subject matter of their copy-right. What they can't do is prevent someone from making the entire uniform. And the reason the statute requires that is because you have this identified separately requirement. And you say- Sinsam just for the pictures that are in their catalog. Is that what you're suing them for? We're not suing them. They're suing us. I'm sorry. You're right. I apologize. So can you get, you could stop them from using their pictures of their uniforms in their catalog? No. But you can't stop them from selling their- We can't stop them from using their copy-right to do anything on a printed page or even to take these designs. And like I said, put it on a lunch box or a notebook. But their copy-right does not- I transpose the two of you. I apologize. No problem, Justice Sotomayor. Can- are they stopping you from- do you think you can sell your uniforms anywhere? Correct. So what can't you do if we don't agree with you? If we agree with them that this is a- a- a- a- a- eligible for copyright absent some other disqualification like obviousness or lack of creativity or whatever else, okay? Assume we agree with them. What can they stop you from doing? Well, actually, if you agree with them that they have a copyright, then you're agreeing with us, too, because we all agree they have a copyright in the sketch. Okay. They have a copyright in the image. Our position is that they cannot then take that image and prohibit us from making the actual three-dimensional uniform. And the reason for that, under Section 101, is because the design neither can be identified separately nor can exist independently, which are the statutory requirements, of the utilitarian aspects of the cheerleader uniform. So, but if I could just go back and make sure I understand my question about the Tuxedo shirt. Yes. I have a copyright in the design of the Tuxedo shirt, not in a Tuxedo. I have a copyright in the design of a Tuxedo shirt. Can I prevent other people from manufacturing Tuxedo shirts? Yes. So why isn't that exactly the same? Because here I have a design in a copyright dress and now I'm trying to prevent other people from manufacturing that cheerleader dress with that design. Because that's like manufacturing the Tuxedo. And what Section 113B says is that all of the copyright law, with respect to this kind of issue, that was- I don't understand why it's like manufacturing the Tuxedo

. It seems as though it's like manufacturing the thing that I have the design. And I have a design in the Tuxedo shirt. So you can't make a Tuxedo shirt. I have a design in a cheerleader dress. So you can't make the cheerleader dress. It has to do with the very careful statutory requirement that they exist independently. What that means is the feature can't add to or change the utilitarian aspects of the article. When you're talking about the Tuxedo design, it's not adding anything functional to the T-shirt. It's simply putting a design on it. When you're talking about these designs on a cheerleader uniform, it advances a number of utilitarian designs. And let me just tick those off quickly. First, it changes how the wearer is perceived through optical illusion. And that's some of the things that I've been referring to. The slimming lines on the side, the waist-nearrowing Vs, the mirror line. That's the same for all five of the inter-ainal. And I'll tick you this list, and then let's look at the uniforms. And I can show you how they do that. The second, like all uniforms, Justice Kagan, it actually identifies the cheerleader as a cheerleader, which was Judge McKeeke's point, Judge Aja. Cleveland's point below, because if these cheerleaders were wearing wrestling singlets, no one would identify them as cheerleaders. And uniforms have a special identification function. You think about military people who are in a scene mixed up with civilians. And it's the military uniforms that identify them as members of the military that tells you whether the rules of war apply to them or not. I feel like conveying information doesn't make an article useful. I don't think that optical illusions are conveying information. I don't think that identification is a major. And I get you said a function of the cheerleader's stress is to identify the person as a cheerleader. Yes, that's a second function. So let me first make clear, the optical illusions isn't conveying information. It's actually causing you to see the person differently than they actually are. So at a minimum, that doesn't fall within this. I think with the identification that allows you to sort people, that's different than conveying information like facts and figures

. In addition, Your Honor, the conveyance of information is actually something that has to be considered as part of the exists independently prong. And you can see this on page two of the blue brief where we have Section 101, both the pictorial graphic and sculptural works definition and the useful article definition. And if you start with the useful article definition to determine whether something is a useful article in the first instance, you ask whether it has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. So portraying the appearance and conveying information are utilitarian functions. But if that's the only thing that they do, then it's not a useful article. But once you've decided that a garment like a cheerleader uniform is a useful article, now you turn to the separability test. So now we look at the PGS definition, right above the useful article definition, and there you're measuring the features against the utilitarian aspects of the article. It doesn't say only the intrinsic utilitarian functions. It's any utilitarian aspect. So having made the first decision, yes, this garment is a useful article, the statute requires us to consider all the utilitarian aspects of the article. And that has to be the case or otherwise, again, military uniforms, their identifying function. You could have lay people making military uniform designs and barring the government from ever being able to manufacture those uniforms themselves, even if everyone agrees that that is a useful thing. Two other quick things and functionality. These designs also define the uniform's style line and their actual three-dimensional shape. So Justice Kagan, the zigzag that they have on the bottom of 299A and 299B on page four of our blue brief, it's actually defining the shape. And everyone agrees that the shape of a uniform can never be copyrighted. There's no dispute about that. The last thing. The shape was the same on all of these, but have different designs, five different designs, same shape. No. Then maybe this would be a good time to turn to the pictures on pages four to five of the blue brief, because these are the actual copyright deposits involved. And what you can see, I'll give you a moment to pull up pages four and five of the blue brief. On page four, you have two of the deposits. This is 299A on the bottom, 299B on the top. And that zigzag actually defines the shape. And it also has the functional utility of covering up the seams and making that waistband stronger, not allowing it to stretch when the cheerleader puts it on and off. The stripes at the top that define the shape of the collar. Again, that's not copyrightable, also cover up seams. That stripe that goes across diagonally right there, that separates the white color block from the red color block. Those two color blocks have to be stitched together. And what they do is they put those stitches on the outside so that it will be smooth on the inside where the cheerleader is, and they have to cover up those seams with a stripe

. So all of these things are functional. So now let's look. So there's a different result if instead of stitched, the design is applied? If it's sublimated, which is something that they've talked about, it's no different with respect to the optical illusion or the identifying function. Because if you print the same design in a cheerleader uniform, you'd have to print it exactly the same way they stitch it. But let's focus now on page five. The bottom drawing there is number 815. This is the red one with the blue stripes that go down the side. It's those blue stripes on the side, just like the Stella McCartney dress that caused the cheerleader to be perceived as slimmer and more curvy than the actual. Sotomayor. Sotomayor. I go back to this point. There's a little confused. You started by saying to me, you don't want to be stopped from manufacturing this particular uniform. Correct. What do they, what do you think they have a copyright in? They have a copyright. Or what do you think is eligible for copyright in this picture? I think the copyright eligibility in this picture is the design so long as it's not being used to prevent the manufacture of the useful article that it was intended to appear on. Like I said, they say- Why isn't that the government's position, too? Well, I think they agree with us on that point. If you look at, yeah, if you look at page 22 and 23 of their brief, they have our little black dress, and then they have this very design here, number 815. And they explain that if we're right that this design has functionality, can she do assuming that you accept what they have a copyright in sort of a cut? So this thing, but not in stopping the manufacture of the uniform, what do you think their copyright stops you from doing? Everything else. We could not print this on a notebook cover. We couldn't put it on a lunchpale. We couldn't put it on a hat. The only thing that allows us to do is to actually produce the useful article itself. And I'm talking so much about Chewley uniforms. I want to focus back on the text just for a moment because the purpose of having a separability test under Section 101 is to make sure that anything that enhances in any way the functionality of a useful article is not within the subject matter of copyright. Well, I guess that's the question. Is it really in any way? Because the opposite way of reading this statute is that the utilitarian aspects of the article that you're talking about in terms of the separability test, that those utilitarian aspects should be understood to encompass only the utilitarian functions that make something a useful article in the first place, which means that they should be held to exclude things that relate to the portraying the appearance of the article or things that relate to conveying information. And that seems to me a pretty good and misacconfused in statute, but it seems to me a pretty good, holistic understanding of this statute, that that's what the statute is trying to do, is to say there are certain kinds of things that might in a broad sense be considered utilitarian, which has to do with portraying appearance or conveying information, that for this inquiry, we want you to exclude that the separability test does not relate to those kinds of things. And Justice Kagan, that would be a possible policy that Congress could have adopted, but that's not what the statute says. When you're applying the separability test, you're comparing the features to the utilitarian aspects of the article. Not the intrinsic utilitarian function, not the ones that made it a useful article, but all utilitarian aspects of the article

. And if you excluded things like uniform identifying functions, then someone would be able to prevent the military from producing camouflage uniforms if they got to that design first. And that's exactly the opposite of what Congress intended. In fact, there's been 100 years of proposed legislation where people have tried to- But the reason why camouflage is such a good example for your side is that camouflage actually we can understand it as having a utilitarian function that is different from simply conveying information and that is different from simply making something appear a certain way. In other words, the utilitarian function that camouflage has is to hide you in the woods. And so that function would not be excluded by these things. Right. But the utilitarian function of the fabric only works in conjunction with the useful article. And the same is true here. When you talk about camouflage, it's creating an optical illusion, right? We've got that picture on page one of our reply brief. And when you first look at that, you don't immediately see that there's a person standing in that tree because they are camouflaged. Well, in the same way with these cheerleader uniform designs, it creates the optical illusion that they're taller, that they're slimmer, that they're curvy or, you know, all these functions work exactly the same way as camouflage. I forget the special things. I have a picture of a dress. Now, the dress is in my mind. I've abstracted it. But when I look at those forms in space, it looks like a dress. Yes. All right. Now, you'd say I take it that when I've tried to identify the design separately, I've ended up with something that is not capable of existing independently of the unit of the utilitarian aspects of the dress because it looks like a dress. So when Marcel Duchamp has a shovel on the wall and says it's a work of art, he can have a copyright as long as he doesn't try to sue people who make shovels. Exactly. That is the identified separately portion of our argument. That's one of the points. That's one of the points. And then if you fail on that, you have all the specialized arguments about special purposes of cheerleader costs. Right. Now, the basic argument is what I said. Is that right? Yes, but the part of your description that makes me nervous is when you talk about, I'm just imagining something because that's the side-by-side test that varsity advances, that you have to just imagine and visualize whether two things can be conceived of as a result. Well, why not? It says separable from so we look to see if it's separable from it. Right. But what they ignore

. What else do we have? What they ignore. What they ignore is that it has to be independent. That means completely separate on both sides of the utilitarian aspects. And so then you'll lose the utility. You know, they would say under their test that here because I can conceptualize this uniform separate from the fabric that that's enough, but it's not because if that design is doing work on the fabric in the place where it was designed to be, then utilitarian function is lost when you remove it. And that's exactly what Section 101 requires. Right. So you have to look not only at the design, you have to look at the article as well. And if the article does less work when that thing is gone, it's not separable. It's protectable. If there are no further questions, I'll reserve the balance of my time. Thank you, Council. Mr. J. Mr. Chief Justice, and may it please the Court, Congress directed the Copyright Office and the courts to protect applied art as well as fine art. Applied art is art applied to a useful article. And where that directive comes into the statute is in Section 101 and in the, in definition of pictorial graphic and sculptural works. And in the substantive provisions that implement that. Now, there are two key directives there, which the Copyright Office has faithfully implemented over many years in thousands upon thousands of registration decisions for applied art and two key principles which the petitioner rejects. Number one is that this is a hypothetical inquiry capable of existing independently of can be identified. And the second is that courts and the Copyright Office are not required to get into the question of how effective the visual or artistic expression of the Copyright work is. What do you do about the camouflage case? We think that camouflage, the idea of camouflage certainly can't be copyrighted under one. This is a special design. The things are curved one way or another that nobody else had thought of. If it's a brand new original camouflage pattern, we think, although I don't think you need to agree with me about this in order to agree with varsity in this case, I do think that an original camouflage pattern could be copyrighted and then reproduced on backpacks, iPhone covers, you know. Can it be reproduced on a military uniform or a hunter's garbage? I think it could, the copyright could extend to that. If that case, if camouflage is not copyrightable in that extent, that's for reasons that I think exactly as Justice Kagan said to my friend. For reasons having to do with the utility of the camouflage design itself, not of the useful article on which it appears. And in this case, you know, our position is that the graphic designs, the striped chevrons and color blocks, they are separable from the useful article on which they appear. If you take them off the useful article, you have whatever color the fabric is a white dress

. But if you look at somebody in the white dress, you don't say, oh, that's the cheerleader. Well, respectfully, Mr. Chief Justice, you could have a white cheerleading uniform worn by a cheerleader with the team name and team logo on it. And I think that we've given examples of why that is, in fact, from the 1950s. Well, you could have it. You could have, if you look at page 34 of the Joint Appendix, you'll see in Starr's own catalog examples of uniforms that have neither striped nor chevrons nor color blocks. Those simply aren't essential to identifying a cheerleader as a cheerleader. Even if identifying were a function that's cognizable under the statute, which it is not. You know, ultimately, the design can be taken and put on other articles. It could be put on, you know, as I said before, an iPhone cover or on the warm-up jackets that are in reproducing the joint. I know. Your friend on the other side concedes that those could be copyrighted. If you take the design of a particular cheerleading uniform and put it on the lunch box or the computer cover, yes, those can be copyrighted. But because it is the design that makes the dress a cheerleading uniform, you can't separate, you can't copyright the design applied to that functional article. Well, let me resist the premise, of course, that this particular design or these five particular designs of striped chevrons and color blocks are what make a cheerleading uniform cheerleading uniform. But even setting that aside, if you look at section 113a, which sets out what rights the owner of a copyright and a pictorial graphic or sculptural work has, those right include the right to make copies of it, to embody the design in or on any kind of article, including a useful article. And, you know, what might be convenient for Star to have a right that just doesn't extend to the product that they want to make. That is not the statute that Congress enacted. You have the owner of a copyright and a visual work, pictorial graphic or sculptural work, has the right to embody it on use for it. I think you're avoiding the question. Yes, you can have a copyright in the pattern. And yes, you can attach it to a useful article, like a lunch box that's going to have the design. But the question is, when the design is what makes that useful article what it is, the design on a lunch box doesn't make the lunch box a lunch box. It's still a lunch box. But the design on a cheerleading uniform is what makes it a cheerleading uniform as opposed to a plain dress. Well, I guess I just have to resist the premise that this particular, these particular designs are what make a cheerleading uniform. Well, resisting the uniform. But if you understand you are resisting the premise has applied to your case, but is that right as a general test that if it is the design that makes the article what it is in its utilitarian aspect, that that cannot be copied? I think that's exactly the kind of utility that Congress did not write into the statute. That is not the kind of utilitarian function that Congress contemplated. And I think that the best evidence of that is both in the legislative history, meaning the House report, and also in the registers testimony about what the Copyright Office had been doing for decades, explaining to Congress in the course of adopting the 76 act. Both the register and the House report say that virtually all two dimensional designs applied to useful articles are going to remain copyrighted

. Ellen, House report is not the law, right? To be sure, we're not saying that it is, but we are saying that if you look, it is perfectly consistent with our view of what a utilitarian aspect of a useful article is. And we also think that, you know, again, you don't, even if the House report had not said, we are intending to codify this Court's decision in measure and the Copyright Office practice. This Court, I think, would have presumed that Congress was doing so. Here, I think that presumption is amply justified. So you're saying that the cheerleading uniforms do not serve a utilitarian purpose? We're saying that they don't serve the utilitarian purpose, that the purposes, my friend attributes to them, are not utilitarian aspects of the article under the statute. They are certainly a utilitarian. They cover the body. They, you know, they provide mobility. Kagan, does every university that contracts with you know that they have to buy their uniform from you for 99 years plus whatever? Every university that you sell, you know, these cheerleading uniforms, too. Do they know that under your copyright, they're stuck with you forever? No, Justice Sambar, that's not the case. Why not? If you have a copyright on this design, and they've adopted their school colors, orange and black, and I presume some of these are cheerleading uniforms belonging to certain teams, they buy them and they put their names on them, correct? Sure. School certainly put their names on cheerleading uniforms. So why aren't they stuck with you being their only supplier of their school colors for the rest of their existence? There are many, many, many variants available, you know, both copyrighted and uncopy righted, you know, variants of cheerleading uniforms that, you know, varsity and its competitors can sell. Again, there are examples in the joint appendix, you know, at the page that I refer to. So I'm right. So at once a school, you design a uniform for school, that's it forever. Well, respectfully, Justice Sambar, Justice Sambar, if we, if we design this particular combination of elements, then we do own the, we do own a copyright in that combination. But we don't own the idea of an orange and black cheerleader uniform or a black and yellow uniform. No, but the point, the question is, I think, because I have exactly the same question. It starts with a premise that everything has design. Some really, a lot of that set can be copyrighted. All women's clothes have design. All men's clothes have design. For a hundred and more than that years, the fashion industry has not enjoyed copyright protection. It is an industry on the women's side, I believe. But $225 billion, at least, worth of clothes, are sold every year. If suddenly in this case, we say that dresses are copyrightable. And they are, because every one of them has some design, perhaps will double the price of women's clothes. Now, if that's, that's, I think, the thrust of the question, and that is a practical question. I also have a conceptual question, which I'd like to ask, but why don't you disabuse me of my notion that we are into monopoly big time? Sotomayor's question was about the particular pattern. And mine is about all dresses, all clothes, all suits. You're killing knockoffs with copyright. Well, you haven't been able to do it with trademark law. You haven't been able to do it with patent designs. We're now going to use copyright law to kill the knockoff industry. I don't know that that's bad. I'm just saying. So let me clarify at the outset, we're not claiming the shape, the cut, or anything like that about these garments. Look at page 60 of our brief, and you will see cataloged all the places where we set out what our registration is in. It's in the two-dimensional artwork that appears on the surface. So I see it here, and as I look at it, and cut away the gums, I have left. This is page 22 of the SGs, brief. What I have left is I have left. This is the design you're after. It is a two-dimensional design that looks to me very much like a dress. It looks very much like a two-dimensional picture of a dress that covers a woman's body. Now. But just not to what you want to copyright. That thing. Absolutely not just that. It's not that you have a different design here than we're not talking about figure eight. We're not talking about figure eight. There are design infigurate. If you look at the registration that corresponds to that figure, which you will find in the joint appendix at 46, you will see that the registration is for two-dimensional artworks. So. Of course it's a two-dimensional, look, I can do a two-dimensional artwork that looks like a Rubik's cube. I mean, a two-dimensional artwork can look like a three-dimensional thing. But it's the two-dimensional artwork that appears on the surface. It is not that we did a two-dimensional picture of a dress and said, now we own the dress. You didn't say you own the dress. What you said is you own the design of the dress. Now, you don't? No

. You're killing knockoffs with copyright. Well, you haven't been able to do it with trademark law. You haven't been able to do it with patent designs. We're now going to use copyright law to kill the knockoff industry. I don't know that that's bad. I'm just saying. So let me clarify at the outset, we're not claiming the shape, the cut, or anything like that about these garments. Look at page 60 of our brief, and you will see cataloged all the places where we set out what our registration is in. It's in the two-dimensional artwork that appears on the surface. So I see it here, and as I look at it, and cut away the gums, I have left. This is page 22 of the SGs, brief. What I have left is I have left. This is the design you're after. It is a two-dimensional design that looks to me very much like a dress. It looks very much like a two-dimensional picture of a dress that covers a woman's body. Now. But just not to what you want to copyright. That thing. Absolutely not just that. It's not that you have a different design here than we're not talking about figure eight. We're not talking about figure eight. There are design infigurate. If you look at the registration that corresponds to that figure, which you will find in the joint appendix at 46, you will see that the registration is for two-dimensional artworks. So. Of course it's a two-dimensional, look, I can do a two-dimensional artwork that looks like a Rubik's cube. I mean, a two-dimensional artwork can look like a three-dimensional thing. But it's the two-dimensional artwork that appears on the surface. It is not that we did a two-dimensional picture of a dress and said, now we own the dress. You didn't say you own the dress. What you said is you own the design of the dress. Now, you don't? No. We say that we own the design that appears on, in that case, on the dress, but that can also appear on the warm-ups. It can also appear on the jacket. So you own even more. Now, wait, I have a conceptual question. I'm not yet satisfied with your answer to the practical question, because I fear that any good designer or lawyer could go and take any dress or suit just about and produce a picture that looks very much like that and then sue the companies that use the same dress or style. That's my practical, but this is the conceptual. Since we can take, since we can take anything, anything, to a two-dimensional picture, and put it on the wall like Marcel Duchamp. If I decide in your favor, am I not allowing copyright for virtually assuming other things satisfied, every design of a useful article, the very thing that Congress said they did not want. No, absolutely not, because the ability to take the shovel and hang it on the wall does not make the shovel a sculpture because the things that make the utility. The reason why I'm talking about the shovel at the moment. I am talking about an artist's ability to take a piece of clothing, which is a utilitarian object and do a two-dimensional picture of the piece of clothing, which, and have some things on it, some Chevron, if you're not, it just looks like a dress. Now, on your theory, does that not become copyrightable? Only in the surface design, not the folds, not the pleats, not the shape, not the cut. And my friend agreed, Mr. J. Kennedy. The surface design. I have a similar question, but suppose I go to a Museum of Modern Art, and I look at a great many famous abstract paintings. I assume that you would say that all of those could be copyrighted, could they not? You know, if they're original and meet the other records, that's one, assume so, yes. And so the design on any fabric potentially could be copyrighted, could it not? The surface design. If it was, if it began as a painting. The owner of the copyright in that painting has the right to reproduce it on fabric, on other textiles, you know, or, you know, on a tapestry, on a rug or on wallpaper, absolutely. And isn't it just starting from the premise that Justice Alito suggested, the fabric designs are copyrightable? Is that correct? That's what I was starting to say just as far as my friend agreed that fabric design is copyrighted. So it seems to me that the question, right, that in this case, is, are you going to treat this kind of design just as you would a fabric design? And as I understood Mr. Berges' point, what Mr. Berges' saying is, no, you shouldn't because this kind of design has, it follows the figure of a human body, essentially. And that's the difference between just a design of like stripes and zigzags and chevron sort of abstractly, and then one that's put on something that looks like a particular piece of a parallel that's meant to fit onto a human body in a particular way. And that seems to be the distinction he's making, and I want you to tell me why that distinction in your view doesn't make a difference. Berges' point is that it doesn't make a difference because what he's identified a number of different, supposed utilitarian aspects, and some of which I think actually go to the fabric of the dress and we're not, or of the uniform, we're not laying claim to that. What he's talking about are the visual ones, the ones that make the cheerleader look up a particular way, and he's saying that you can't copyright those as applies to a cheerleader in uniform because they're especially useful there. Like, that's where they are most effective in conveying this image. We think that is not what the definition of utilitarian, the meaning of utilitarian aspects encompasses because any work of visual art conveys a visual message or an aesthetic impact, and to have the ones that are most effective be least copyrightable, we think doesn't work

. We say that we own the design that appears on, in that case, on the dress, but that can also appear on the warm-ups. It can also appear on the jacket. So you own even more. Now, wait, I have a conceptual question. I'm not yet satisfied with your answer to the practical question, because I fear that any good designer or lawyer could go and take any dress or suit just about and produce a picture that looks very much like that and then sue the companies that use the same dress or style. That's my practical, but this is the conceptual. Since we can take, since we can take anything, anything, to a two-dimensional picture, and put it on the wall like Marcel Duchamp. If I decide in your favor, am I not allowing copyright for virtually assuming other things satisfied, every design of a useful article, the very thing that Congress said they did not want. No, absolutely not, because the ability to take the shovel and hang it on the wall does not make the shovel a sculpture because the things that make the utility. The reason why I'm talking about the shovel at the moment. I am talking about an artist's ability to take a piece of clothing, which is a utilitarian object and do a two-dimensional picture of the piece of clothing, which, and have some things on it, some Chevron, if you're not, it just looks like a dress. Now, on your theory, does that not become copyrightable? Only in the surface design, not the folds, not the pleats, not the shape, not the cut. And my friend agreed, Mr. J. Kennedy. The surface design. I have a similar question, but suppose I go to a Museum of Modern Art, and I look at a great many famous abstract paintings. I assume that you would say that all of those could be copyrighted, could they not? You know, if they're original and meet the other records, that's one, assume so, yes. And so the design on any fabric potentially could be copyrighted, could it not? The surface design. If it was, if it began as a painting. The owner of the copyright in that painting has the right to reproduce it on fabric, on other textiles, you know, or, you know, on a tapestry, on a rug or on wallpaper, absolutely. And isn't it just starting from the premise that Justice Alito suggested, the fabric designs are copyrightable? Is that correct? That's what I was starting to say just as far as my friend agreed that fabric design is copyrighted. So it seems to me that the question, right, that in this case, is, are you going to treat this kind of design just as you would a fabric design? And as I understood Mr. Berges' point, what Mr. Berges' saying is, no, you shouldn't because this kind of design has, it follows the figure of a human body, essentially. And that's the difference between just a design of like stripes and zigzags and chevron sort of abstractly, and then one that's put on something that looks like a particular piece of a parallel that's meant to fit onto a human body in a particular way. And that seems to be the distinction he's making, and I want you to tell me why that distinction in your view doesn't make a difference. Berges' point is that it doesn't make a difference because what he's identified a number of different, supposed utilitarian aspects, and some of which I think actually go to the fabric of the dress and we're not, or of the uniform, we're not laying claim to that. What he's talking about are the visual ones, the ones that make the cheerleader look up a particular way, and he's saying that you can't copyright those as applies to a cheerleader in uniform because they're especially useful there. Like, that's where they are most effective in conveying this image. We think that is not what the definition of utilitarian, the meaning of utilitarian aspects encompasses because any work of visual art conveys a visual message or an aesthetic impact, and to have the ones that are most effective be least copyrightable, we think doesn't work. And I think that's the difference between that utilitarian argument and the utilitarian argument as applied to camouflage. The utilitarian argument as applied to camouflage is that it's, I mean, as I said to the Chief Justice, I mean, we do think that if you see camouflage as portraying the appearance of a particular thing or sending a message that you belong in a particular group, that would not be copyright eligible. Sorry, that would not be a utilitarian aspect. If camouflage is not copyright eligible, it's because it performs something that's different from making you look good in an aesthetic way. It's because it conceals. Now, ultimately, we think the best answer is that- Why should that make a difference? I mean, the word utilitarian is the key word in the definition. And I think maybe using one of the fine arts examples might help to illustrate this point. If you look in the amicus brief of Professor Buckoflisco and Fromur, they have, in their illustration number one, is the fresco painted on the dome of a church. And they say that's not copyright eligible because it uses techniques to make the dome look bigger. And now, you certainly can't get a copyright in the idea of Trump-Loy art, but you certainly can get a copyright in a work of fine art that decorates a room or a rug or a useful article. And that makes the room look better or makes the person who wears it look better. The fact that it's effective, that it makes, you know, it serves to make that particular church look bigger, that is not a reason to withhold copyright protection. That's the argument. The argument is not that it makes the room or whatever look better. The argument here is design makes this look like a cheerleader uniform, which is different distinctive function in a, then, a normal dress. Well. It's not simply to cover the body. It's to convey a particular message. It shows that you're a member of the cheerleading squad and. Well, if that were true, Mr. Chief Justice, they'd have a decent argument under the merger doctrine if there were, if there were only a few ways of expressing that you are a cheerleader and that you are wearing a cheerleader uniform. You can't get a copyright in an idea. That's 102B. The merger doctrine, not this Utilis-Harian separability analysis that we've been talking about, the merger doctrine is the primary way in which courts and the copyright office can, you know, prevent the owner of a copyright from locking up the ways of expressing a particular idea. So that, if on the facts, there were only a couple ways of looking like a cheerleader, that would be the way to get at that. You were on the same page. I'm really wrong. Under your argument and as you best understand your colleague's argument, to what extent are there findings of fact involved here? I mean, are we the ones that decided you wanted to introduce expert testimony? What was the expert testimony you wanted? The other side wanted to introduce expert testimony, Your Honor. Petitioner told this Court in page 40 of the petition for SERT that this is a pure legal question. We agree that under the correct analysis, it is a pure legal question, but we think that's a real vice of the other side's view that they are asserting, you know, essentially as a matter of law, that certain things are necessary to be a cheerleader, that certain things are influenced by function or are. Or you just said that

. And I think that's the difference between that utilitarian argument and the utilitarian argument as applied to camouflage. The utilitarian argument as applied to camouflage is that it's, I mean, as I said to the Chief Justice, I mean, we do think that if you see camouflage as portraying the appearance of a particular thing or sending a message that you belong in a particular group, that would not be copyright eligible. Sorry, that would not be a utilitarian aspect. If camouflage is not copyright eligible, it's because it performs something that's different from making you look good in an aesthetic way. It's because it conceals. Now, ultimately, we think the best answer is that- Why should that make a difference? I mean, the word utilitarian is the key word in the definition. And I think maybe using one of the fine arts examples might help to illustrate this point. If you look in the amicus brief of Professor Buckoflisco and Fromur, they have, in their illustration number one, is the fresco painted on the dome of a church. And they say that's not copyright eligible because it uses techniques to make the dome look bigger. And now, you certainly can't get a copyright in the idea of Trump-Loy art, but you certainly can get a copyright in a work of fine art that decorates a room or a rug or a useful article. And that makes the room look better or makes the person who wears it look better. The fact that it's effective, that it makes, you know, it serves to make that particular church look bigger, that is not a reason to withhold copyright protection. That's the argument. The argument is not that it makes the room or whatever look better. The argument here is design makes this look like a cheerleader uniform, which is different distinctive function in a, then, a normal dress. Well. It's not simply to cover the body. It's to convey a particular message. It shows that you're a member of the cheerleading squad and. Well, if that were true, Mr. Chief Justice, they'd have a decent argument under the merger doctrine if there were, if there were only a few ways of expressing that you are a cheerleader and that you are wearing a cheerleader uniform. You can't get a copyright in an idea. That's 102B. The merger doctrine, not this Utilis-Harian separability analysis that we've been talking about, the merger doctrine is the primary way in which courts and the copyright office can, you know, prevent the owner of a copyright from locking up the ways of expressing a particular idea. So that, if on the facts, there were only a couple ways of looking like a cheerleader, that would be the way to get at that. You were on the same page. I'm really wrong. Under your argument and as you best understand your colleague's argument, to what extent are there findings of fact involved here? I mean, are we the ones that decided you wanted to introduce expert testimony? What was the expert testimony you wanted? The other side wanted to introduce expert testimony, Your Honor. Petitioner told this Court in page 40 of the petition for SERT that this is a pure legal question. We agree that under the correct analysis, it is a pure legal question, but we think that's a real vice of the other side's view that they are asserting, you know, essentially as a matter of law, that certain things are necessary to be a cheerleader, that certain things are influenced by function or are. Or you just said that. You said there are a lot of other ways to show that somebody is a cheerleader, and, you know, maybe I started to try to think of them, and you know, it's not just that they all look alike, it's, so maybe that's one area in which you have testimony, that 95 percent of the cheerleading squads look like this. So maybe there aren't other ways. Well, ultimately, the question is the hypothetical question, whether this design can, you know, can be identified separately from the articles on which it appears, and whether it has an, it has an existence separate from those articles. And when you say this design, I'm sorry, Mr. Kennedy. No, no, I think. When you say this design, just to make sure I understand what you're claiming copyright in. So if I'm looking at page four and there's this design with the blue stripe and a white stripe and a red stripe and a white stripe and a blue stripe, could somebody else come along and just add another red stripe to that? And would that, would you then say you violated our copyright? Our copyright is in the arrangement of the design elements. The particular arrangement. So if somebody just added a different, another stripe. Well, adding another stripe is, I hesitate to agree with because usually reproducing a copyrighted work and then adding some stuff around it is not enough to avoid infringement. But if they changed the colors and reordered the elements, I think they'd have a good argument that it's not infringing. Thank you, counsel. Mr. Fagan. Thank you, Mr. Chief Justice. May I please the Court? This case is about the reproduction of two-dimensional artwork on a useful article. The question here is fundamentally indistinguishable from the Tuxedo shirt that my friend conceded would retain copyright protection or putting a sports team logo on a T-shirt that identifies somebody as a team member or a fan. Or putting camouflage on a military uniform. So your honor. Camouflage has been protected by copyright for decades. The copyright offices practices on that reflect the view that camouflage is generally eligible, at least for a very thin copyright, in the creative elements of a particular camouflage pattern that aren't dictated by the underlying ideas and scientific principles that make it work. He even has applied to a military uniform. So as applied to military uniform, if someone were asserting a copyright in camouflage in such a manner as to prevent the manufacturer of a uniform from actually manufacturing a uniform that would perform a concealment function, and if concealment were, as Justice Kagan was positing, considered to be separate from the sorts of expressive functions that are traditionally protected by copyright. There might be infringement the answer. And there might be some infringement defenses that would apply in that context. But what I think this is spewed in this case is really boiling down to is a question of what the utilitarian aspects of a useful article are. And I think there are two the petitioners identifying. One is conveying the information that someone is a cheerleader, identifying someone as a cheerleader. And the other is affecting the viewer's perception of the wearer's appearance

. You said there are a lot of other ways to show that somebody is a cheerleader, and, you know, maybe I started to try to think of them, and you know, it's not just that they all look alike, it's, so maybe that's one area in which you have testimony, that 95 percent of the cheerleading squads look like this. So maybe there aren't other ways. Well, ultimately, the question is the hypothetical question, whether this design can, you know, can be identified separately from the articles on which it appears, and whether it has an, it has an existence separate from those articles. And when you say this design, I'm sorry, Mr. Kennedy. No, no, I think. When you say this design, just to make sure I understand what you're claiming copyright in. So if I'm looking at page four and there's this design with the blue stripe and a white stripe and a red stripe and a white stripe and a blue stripe, could somebody else come along and just add another red stripe to that? And would that, would you then say you violated our copyright? Our copyright is in the arrangement of the design elements. The particular arrangement. So if somebody just added a different, another stripe. Well, adding another stripe is, I hesitate to agree with because usually reproducing a copyrighted work and then adding some stuff around it is not enough to avoid infringement. But if they changed the colors and reordered the elements, I think they'd have a good argument that it's not infringing. Thank you, counsel. Mr. Fagan. Thank you, Mr. Chief Justice. May I please the Court? This case is about the reproduction of two-dimensional artwork on a useful article. The question here is fundamentally indistinguishable from the Tuxedo shirt that my friend conceded would retain copyright protection or putting a sports team logo on a T-shirt that identifies somebody as a team member or a fan. Or putting camouflage on a military uniform. So your honor. Camouflage has been protected by copyright for decades. The copyright offices practices on that reflect the view that camouflage is generally eligible, at least for a very thin copyright, in the creative elements of a particular camouflage pattern that aren't dictated by the underlying ideas and scientific principles that make it work. He even has applied to a military uniform. So as applied to military uniform, if someone were asserting a copyright in camouflage in such a manner as to prevent the manufacturer of a uniform from actually manufacturing a uniform that would perform a concealment function, and if concealment were, as Justice Kagan was positing, considered to be separate from the sorts of expressive functions that are traditionally protected by copyright. There might be infringement the answer. And there might be some infringement defenses that would apply in that context. But what I think this is spewed in this case is really boiling down to is a question of what the utilitarian aspects of a useful article are. And I think there are two the petitioners identifying. One is conveying the information that someone is a cheerleader, identifying someone as a cheerleader. And the other is affecting the viewer's perception of the wearer's appearance. And I'd like to just explain overall. What about the woman or the man who wishes, and indeed this is a normal reason for wearing clothes, they're making a statement about themselves. They're saying who they are. The clothes on the hanger do nothing. The clothes on the woman do everything. And that is, I think, what fashion is about? It's so romantic. It's so romantic. It has been in history now, isn't that it? What? Well, your Honor, it is- Why do we wear robes? Your Honor, it is clear, and it's common ground among the parties, and with the copyright office, that the actual cut and shape of a garment isn't copyrighted. What about Lemley's test on page 17 of his brief? As I read it, and I thought, and I'm sure you've read it, and it seemed to me that it does say that a two-dimensional picture of a three-dimensional piece of clothing is not entitled to copyright, because it is not a design of anything but a utilitarian object of clothes, whether they are beautiful clothes, ugly clothes, cheerleader, or anything else. Well, Your Honor, I think I, we disagree that you can't take the aesthetic aspects of the cheerleading uniform and put them in a different way. Now, but do you agree with Lemley's statement, which I mean, it's such an- No. The old professors are there. Your Honor- That's why I thought, probably, you've read it, and it's from all over the country, and I wanted to get your opinion up here. Your Honor, as you've characterized the statement, we don't agree with it. We do think the two-dimensional artwork here is separable from the garment, the cut and shape of which is not copyrightable. Let me just make a couple of points. One is about the act and what it's doing overall. The act overall is drawing a distinction between the kinds of aesthetic, communicative, expressive functions that are traditionally protected by copyright, and the kinds of mechanical, pragmatic, utilitarian functions that are exclusively the domain of a useful article. And the kinds of functions that Mr. Burses is talking about here are fundamentally expressive functions. First of all, conveying the information that someone is a cheerleader, when someone is wearing a particular piece of clothing intended to convey that they're a member of a particular group or that they hold a particular belief, that is the kind of expressive function that copyright traditionally protects, and indeed there's an express exception in the definition of a useful article for conveying information. And I think it's indistinguishable from putting a sports team logo on a t-shirt to identify someone as a Washington Capitals fan, for instance. Well, what do you do with Mr. Burses' examples of military uniforms or police officer uniforms, something like that? So, Your Honor, those also are conveying information. Now, if someone were trying to assert a copyright in the design of a policeman uniform in such a way that it turned out there were, say, only a limited number of ways to identify someone as a policeman, and a copyright were being asserted to prevent identification of someone as a policeman, then the defenses that we discuss at pages 39 to 40 of our brief, the merger doctrine, the sends a fair doctrine, would apply to prevent what would effectively be monopolization of that idea. So, if that were really happening in this case, and there's some reasons to think that's not actually happening in the cheerleading realm, and we discussed those in our brief, that that were happening, those defenses would apply. Good about the Galeano case. That was the casino uniform. Why is that different from the cheerleader uniform? Well, Your Honor, we don't agree with the result in the Galeano case. To the extent there were some sort of unique two-dimensional elements that some casino wanted to put on its uniforms to identify its employees, that artwork would be copyrightable, and just like the cheerleading uniforms in this case. I also want to address the argument that- Well, before you get away from it, one thing very quick is maybe I really agree with you

. And I'd like to just explain overall. What about the woman or the man who wishes, and indeed this is a normal reason for wearing clothes, they're making a statement about themselves. They're saying who they are. The clothes on the hanger do nothing. The clothes on the woman do everything. And that is, I think, what fashion is about? It's so romantic. It's so romantic. It has been in history now, isn't that it? What? Well, your Honor, it is- Why do we wear robes? Your Honor, it is clear, and it's common ground among the parties, and with the copyright office, that the actual cut and shape of a garment isn't copyrighted. What about Lemley's test on page 17 of his brief? As I read it, and I thought, and I'm sure you've read it, and it seemed to me that it does say that a two-dimensional picture of a three-dimensional piece of clothing is not entitled to copyright, because it is not a design of anything but a utilitarian object of clothes, whether they are beautiful clothes, ugly clothes, cheerleader, or anything else. Well, Your Honor, I think I, we disagree that you can't take the aesthetic aspects of the cheerleading uniform and put them in a different way. Now, but do you agree with Lemley's statement, which I mean, it's such an- No. The old professors are there. Your Honor- That's why I thought, probably, you've read it, and it's from all over the country, and I wanted to get your opinion up here. Your Honor, as you've characterized the statement, we don't agree with it. We do think the two-dimensional artwork here is separable from the garment, the cut and shape of which is not copyrightable. Let me just make a couple of points. One is about the act and what it's doing overall. The act overall is drawing a distinction between the kinds of aesthetic, communicative, expressive functions that are traditionally protected by copyright, and the kinds of mechanical, pragmatic, utilitarian functions that are exclusively the domain of a useful article. And the kinds of functions that Mr. Burses is talking about here are fundamentally expressive functions. First of all, conveying the information that someone is a cheerleader, when someone is wearing a particular piece of clothing intended to convey that they're a member of a particular group or that they hold a particular belief, that is the kind of expressive function that copyright traditionally protects, and indeed there's an express exception in the definition of a useful article for conveying information. And I think it's indistinguishable from putting a sports team logo on a t-shirt to identify someone as a Washington Capitals fan, for instance. Well, what do you do with Mr. Burses' examples of military uniforms or police officer uniforms, something like that? So, Your Honor, those also are conveying information. Now, if someone were trying to assert a copyright in the design of a policeman uniform in such a way that it turned out there were, say, only a limited number of ways to identify someone as a policeman, and a copyright were being asserted to prevent identification of someone as a policeman, then the defenses that we discuss at pages 39 to 40 of our brief, the merger doctrine, the sends a fair doctrine, would apply to prevent what would effectively be monopolization of that idea. So, if that were really happening in this case, and there's some reasons to think that's not actually happening in the cheerleading realm, and we discussed those in our brief, that that were happening, those defenses would apply. Good about the Galeano case. That was the casino uniform. Why is that different from the cheerleader uniform? Well, Your Honor, we don't agree with the result in the Galeano case. To the extent there were some sort of unique two-dimensional elements that some casino wanted to put on its uniforms to identify its employees, that artwork would be copyrightable, and just like the cheerleading uniforms in this case. I also want to address the argument that- Well, before you get away from it, one thing very quick is maybe I really agree with you. I had looked at page 22 of your brief at Figure 8, and what I had seen there when I took the arms away was a picture of a thing that was a picture of the cut and style, and not just a picture of chevrons. And so, but if that's what it is, then you would agree, and I would agree that it's not everybody would agree, I guess it's not copyrightable. The point of Figure 7 and 8 in our brief, Your Honor, is that everything you see in Figure 7 that's also in Figure 8 is not copyrightable. That's the cut and shape of the dress. It's the stripes and the coloration, the lines, and the design, and this particular arrangement. So what happens if when you look at the picture that they submit to the copyright office and try to figure out if it's separable, what you see is a picture of a dress that goes around a woman which does look like shape and cut and stuff. So they have generally checked a box as they did here that says two-dimensional artwork, and the copyright office understands all they're trying to protect is the surface imagery of the garment, and that they'll register. I do want to address this idea that making the viewer look different is somehow the kind of non-expressive function that is associated with the useful article, with the useful article, and I think that approach would be contrary to congressional intent and completely inadministrable. If you look at page 55 of the House report, you'll see that Congress believed that two-dimensional designs on fabric or on wallpaper would be separable and thus copyrightable. But that wouldn't be true under the approach petitioners urging. Under that approach, you'd have to look at a particular two-dimensional design on wallpaper and try to assess whether and to what degree it might make the room look bigger or brighter or smaller or darker. I'm not aware of any scientific, reliable or suspiciously. Sotomayor. But on the other hand, it seems a little bit strange that you don't take a garment designer who wants to do a design that is slimming. And if you, there are all kinds of structural things you can do that are slimming, and those would not be copyrightable. Then you're saying that the placement of stripes or color that is copyrightable, even though the garment designer is really trying to do the same thing through color and through graphic design as he was doing through the shape of the article. So you're going to definitely think there is a spectrum here, but let me try to explain why I think this is on the expressive side of the line, not the non-expressive side of the line. If I were to wear a shirt that said, please focus on my very nicely toned arms. I've worked very hard on them. I think we'd all understand the message conveyed by that shirt to be expressive and separable from the non-expressive functions that the shirt performs covering my body. Now, what the kinds of things that we're talking about here are essentially sending that same message albeit in a non-verbal, more subconscious way. But they're still fundamentally expressive because they're about how the wearer is trying to portray themselves and their appearance to the world. And that's all that's being copyrighted. That's traditionally within the domain of copyright. It is not copyrighting particular functionality. It's in the domain of copyright to copyright the way people present themselves to the world. The way that someone expresses an idea to the world, in this case, the idea would be how they look is something that is very akin to traditional expression that's protected by copyright. Again, here we're just talking about two-dimensional artwork. If we adopted a petitioner's view, the copyright office, when it looks at a particular two-dimensional design, would have to figure out what effect it would have in all sorts of contexts on various useful articles. So the whole point of the end of the case is we're not just talking about two-dimensional artwork. We're talking about two-dimensional artwork applied to the fabric in a way that conveys a utilitarian function

. I had looked at page 22 of your brief at Figure 8, and what I had seen there when I took the arms away was a picture of a thing that was a picture of the cut and style, and not just a picture of chevrons. And so, but if that's what it is, then you would agree, and I would agree that it's not everybody would agree, I guess it's not copyrightable. The point of Figure 7 and 8 in our brief, Your Honor, is that everything you see in Figure 7 that's also in Figure 8 is not copyrightable. That's the cut and shape of the dress. It's the stripes and the coloration, the lines, and the design, and this particular arrangement. So what happens if when you look at the picture that they submit to the copyright office and try to figure out if it's separable, what you see is a picture of a dress that goes around a woman which does look like shape and cut and stuff. So they have generally checked a box as they did here that says two-dimensional artwork, and the copyright office understands all they're trying to protect is the surface imagery of the garment, and that they'll register. I do want to address this idea that making the viewer look different is somehow the kind of non-expressive function that is associated with the useful article, with the useful article, and I think that approach would be contrary to congressional intent and completely inadministrable. If you look at page 55 of the House report, you'll see that Congress believed that two-dimensional designs on fabric or on wallpaper would be separable and thus copyrightable. But that wouldn't be true under the approach petitioners urging. Under that approach, you'd have to look at a particular two-dimensional design on wallpaper and try to assess whether and to what degree it might make the room look bigger or brighter or smaller or darker. I'm not aware of any scientific, reliable or suspiciously. Sotomayor. But on the other hand, it seems a little bit strange that you don't take a garment designer who wants to do a design that is slimming. And if you, there are all kinds of structural things you can do that are slimming, and those would not be copyrightable. Then you're saying that the placement of stripes or color that is copyrightable, even though the garment designer is really trying to do the same thing through color and through graphic design as he was doing through the shape of the article. So you're going to definitely think there is a spectrum here, but let me try to explain why I think this is on the expressive side of the line, not the non-expressive side of the line. If I were to wear a shirt that said, please focus on my very nicely toned arms. I've worked very hard on them. I think we'd all understand the message conveyed by that shirt to be expressive and separable from the non-expressive functions that the shirt performs covering my body. Now, what the kinds of things that we're talking about here are essentially sending that same message albeit in a non-verbal, more subconscious way. But they're still fundamentally expressive because they're about how the wearer is trying to portray themselves and their appearance to the world. And that's all that's being copyrighted. That's traditionally within the domain of copyright. It is not copyrighting particular functionality. It's in the domain of copyright to copyright the way people present themselves to the world. The way that someone expresses an idea to the world, in this case, the idea would be how they look is something that is very akin to traditional expression that's protected by copyright. Again, here we're just talking about two-dimensional artwork. If we adopted a petitioner's view, the copyright office, when it looks at a particular two-dimensional design, would have to figure out what effect it would have in all sorts of contexts on various useful articles. So the whole point of the end of the case is we're not just talking about two-dimensional artwork. We're talking about two-dimensional artwork applied to the fabric in a way that conveys a utilitarian function. It's not just the two-dimensional. Your friend concedes that if you want to put a picture of this on a lunchbox or whatever, that you have a copyright in that. It's only when you apply it to a garment because it is what makes that garment a cheerleading outfit, as opposed to somebody else. It serves that utilitarian function that you don't have a copyright. Well, I think our fundamental disagreement is whether this is actually performing utilitarian functions, if I could just share my response. And I think one problem with the approach you've just articulated is it really divorces Section 101 and Section 113A because you could get a copyright in the illustration and then he would say it's not copyrightable in certain applications. And that doesn't make much sense. Thank you. Thank you, Council. Mr. Bursch, six minutes. Thank you, Mr. Chief Justice. I want to start with that final point that the government makes, that if you had a statement that said, look at my arms on your shirt, that somehow that would be conveying the same message, that's not what this is doing. No one is saying, look at my arms. Like with camouflage, you're not saying, look, you can't see me. The camouflage is actually doing work when it's put in connection with the garment that it was designed for. That's the point. And on that point, Justice Kagan, I just want to make clear about the functionality that we're claiming here with respect to these designs. It's not just that the lines follow the figure of the human body. It's that they actually make the human body appear to look different than it would if they were not wearing those designs. Just like camouflage. I mean, the colors are just colors. You can, what he's saying is you can achieve the same thing with probably most colors and stripes and whatever else is in this. Well, they're not claiming copyright in the colors. They can't. They're claiming the arrangement. And I would say, even as to color, this Court in the Qualitex case, that was a trademark case, you said that black, the color black, has the ability to be used in the color black, to make a motor look smaller than it actually is. It has a function that makes it ineligible for trademark protection. And really, that's the same thing that we're talking about here. That you can use graphic design like camouflage

. It's not just the two-dimensional. Your friend concedes that if you want to put a picture of this on a lunchbox or whatever, that you have a copyright in that. It's only when you apply it to a garment because it is what makes that garment a cheerleading outfit, as opposed to somebody else. It serves that utilitarian function that you don't have a copyright. Well, I think our fundamental disagreement is whether this is actually performing utilitarian functions, if I could just share my response. And I think one problem with the approach you've just articulated is it really divorces Section 101 and Section 113A because you could get a copyright in the illustration and then he would say it's not copyrightable in certain applications. And that doesn't make much sense. Thank you. Thank you, Council. Mr. Bursch, six minutes. Thank you, Mr. Chief Justice. I want to start with that final point that the government makes, that if you had a statement that said, look at my arms on your shirt, that somehow that would be conveying the same message, that's not what this is doing. No one is saying, look at my arms. Like with camouflage, you're not saying, look, you can't see me. The camouflage is actually doing work when it's put in connection with the garment that it was designed for. That's the point. And on that point, Justice Kagan, I just want to make clear about the functionality that we're claiming here with respect to these designs. It's not just that the lines follow the figure of the human body. It's that they actually make the human body appear to look different than it would if they were not wearing those designs. Just like camouflage. I mean, the colors are just colors. You can, what he's saying is you can achieve the same thing with probably most colors and stripes and whatever else is in this. Well, they're not claiming copyright in the colors. They can't. They're claiming the arrangement. And I would say, even as to color, this Court in the Qualitex case, that was a trademark case, you said that black, the color black, has the ability to be used in the color black, to make a motor look smaller than it actually is. It has a function that makes it ineligible for trademark protection. And really, that's the same thing that we're talking about here. That you can use graphic design like camouflage. You're going further. You're now saying that any, then you're saying there's no copyright. Oh, no. Most things. We're saying. I'm most pictorial representations. They can always be applied in a way that has a function. That's not correct, because if you took the sports logo that the government mentioned, that's a perfect example of something that doesn't require the garment for its functionality because just like we were discussing earlier, you could take the logo and you could put it on your hat or your socks or your lunchpale or on your, your mitten that you hold up when the folks at the home run, right? Because it doesn't have, it doesn't rely at all for the article on which it's appeared for its functionality. But here, these designs rely entirely. Right. Exactly. And if we say you're saying, even if you find a color rainbow of some weird elk, that could never be copyrighted. Because they could have the copyright in the two-dimensional design. But if there was an application where it would create functionality when paired with a garment, then yes, their copyright would not extend to the bed. How about the gorilla? The gorilla's hand around your, one of the pictures is- Right. That's a much closer case than this one. For starters, if we're walking through the analysis, first you look at the identified separately. And here, when you look at the arrangement of the stripes and the color blocks and the chevrons, you see the cheerleader uniform. And this is Justice Breyer's point about page 17 of the Lemley brief, right? That the aesthetic elements exist only as part of a cheerleader uniform. There's nothing to extract. That's why this case is different than the gorilla case. So then what you have to ask is if the t-shirt in that case was less functional without the design. And I think that's a close call. But this case is like the camouflage because it's doing the work of changing the way the body is perceived, just the way camouflage changes the way the body is perceived. And just like military uniforms, having an identifying function, which is extremely important. So I bring this all back to what the Chief Justice said, isn't it the test if it's the design that makes the article what it is, then you can't copyright it. And I would say that that's almost exactly right. They can copyright the design and prevent reproduction of the two-dimensional design on the notebook or the lunchbox. But if it's the design that makes the article what it is, you can't prevent that. How do we decide that it's the design that makes it what it is, as opposed to the cut of the garment, the shape, the pleats, so whatever. The tightness of the top

. You're going further. You're now saying that any, then you're saying there's no copyright. Oh, no. Most things. We're saying. I'm most pictorial representations. They can always be applied in a way that has a function. That's not correct, because if you took the sports logo that the government mentioned, that's a perfect example of something that doesn't require the garment for its functionality because just like we were discussing earlier, you could take the logo and you could put it on your hat or your socks or your lunchpale or on your, your mitten that you hold up when the folks at the home run, right? Because it doesn't have, it doesn't rely at all for the article on which it's appeared for its functionality. But here, these designs rely entirely. Right. Exactly. And if we say you're saying, even if you find a color rainbow of some weird elk, that could never be copyrighted. Because they could have the copyright in the two-dimensional design. But if there was an application where it would create functionality when paired with a garment, then yes, their copyright would not extend to the bed. How about the gorilla? The gorilla's hand around your, one of the pictures is- Right. That's a much closer case than this one. For starters, if we're walking through the analysis, first you look at the identified separately. And here, when you look at the arrangement of the stripes and the color blocks and the chevrons, you see the cheerleader uniform. And this is Justice Breyer's point about page 17 of the Lemley brief, right? That the aesthetic elements exist only as part of a cheerleader uniform. There's nothing to extract. That's why this case is different than the gorilla case. So then what you have to ask is if the t-shirt in that case was less functional without the design. And I think that's a close call. But this case is like the camouflage because it's doing the work of changing the way the body is perceived, just the way camouflage changes the way the body is perceived. And just like military uniforms, having an identifying function, which is extremely important. So I bring this all back to what the Chief Justice said, isn't it the test if it's the design that makes the article what it is, then you can't copyright it. And I would say that that's almost exactly right. They can copyright the design and prevent reproduction of the two-dimensional design on the notebook or the lunchbox. But if it's the design that makes the article what it is, you can't prevent that. How do we decide that it's the design that makes it what it is, as opposed to the cut of the garment, the shape, the pleats, so whatever. The tightness of the top. Why should we say that this two-dimensional design, which could be put on many things, is what makes this article utilitarian? What do you do about the shape? Well, here, it's more than just the shape. If we go back and look at these. We, everybody agrees that the shape, the cut of the dress, that the garment itself is not copyrightable, right? Correct. Everyone agrees. So we're talking about the design. Yes. So why isn't this close to a fabric design? Because, again, the fabric designs work anywhere, any place, no matter how you move them. If we're looking at page five and you've got the waist narrowing these, which are not the shape of the dress, but they make the illusion that the shape of the dress is cutting in to make you slimmer, those only work in that particular place on this article. If you put those on the lunchbox, they don't make the person look narrower. They don't even make the lunchbox look narrower. The design, the shape of the design's work, just like the shape of the garment itself. And that's why this is different than that flowered print that we were talking about in the folio case. In conclusion, I want to go back to what Justice Breyer and Justice Sotomayor said. That if you recognize that their two-dimensional copyright extends to prohibit the manufacture of actual three-dimensional cheerleader uniforms, then you're giving them 100 year of copyright monopoly and that school can't go anywhere else. And that's really ironic because you have to keep in mind that school just doesn't just go to somebody who puts a zigzag where the chevron was or chevron where the zigzag was or makes it a couple of different colors or adds another stripe. I mean, there's this, my clerk found, I'm sorry, just at that. You can. I'm done with my question. As my friend on the other side said, it would still be a copyright problem because they would claim that it was too close to the original. And you can see from the last two pictures that we have in our reply brief that there are only certain places that these stripes and chevrons and color blocks can go or otherwise it doesn't look like a cheerleader uniform anymore. It doesn't identify the person, certainly doesn't have the slimming effect, the making taller effect, and all the other things that camouflage do. So we respectfully request that you not grant a 100 year copyright monopoly in design. Thank you, counsel. The case is submitted.

We'll hear argument next in case 15, 866 star, Athletica versus Varsity Brands. Mr. Bersch. Thank you, Mr. Chief Justice, and may it please the Court. Congress did not intend to grant a century-long copyright monopoly in cheerleader uniform design, and there are three points that support that can include inclusion. First, by subjecting two-dimensional pictures and graphics, as well as sculptures, two Section 101 separability tests, Congress made clear that two-dimensional and three-dimensional designs must be analyzed for separability. Second, under Section 101's text, the Dispositive Questions are two-fold. Whether the design features can be identified separately from the useful articles utilitarian aspects, and second, whether they can exist independently. That is, the design features do not add to or change the useful articles utilitarian aspects. Why in this case would we even need to get to any question of separability? What was submitted was a two-dimensional artwork. It may not be like Mondrian, but it is Chevrons and other things. They're not submitting the cheerleader's uniform itself, and I say anything about the shape of the uniform, the cut of the uniform. They're just saying these zigzag designs, and you can choose from five different ones that interchangeable the design. So why isn't this a case of not part, the pictorial graphic element is not part of the design of the cheerleader's uniform. It's superimposed on it. It's reproduced on it. It's applied to it. There are two reasons, Justice Ginsburg. First, consider the example where you have a designer who designs a military uniform, an on-net military uniform. They design the best desert camouflage that's been ever designed in the history of the world, and they submit it to the copyright office, and they don't claim the design in the uniform. They only claim copyright in the design on the uniform. There's no question they would have the copyright in the design, but the courts would still look to see whether that adds to the utilitarian aspects of the uniform, such that that design copyright holder could not prevent the military from producing a military uniform that uses that design. That's why it's so important to understand that in Section 101, not only two-dimensional or three-dimensional, but also two-dimensional designs are subject to separability. And there's a second reason, Justice Ginsburg, what you're referring to generally is kind of the area of fabric design. And a good example of fabric design is that the flowers on the fabric in the folio impressions case that we reprint on page 7 of our reply brief. And those flowers, you could expand the design, you could contract the design, you could make any article of clothing out of a what, so ever, you could rotate at 45 degrees, and it always works functionally the same. Here, when you're talking about these cheerleader uniform designs, the arrangement of the color blocks and the chevrons and the stripes, if you made it smaller and put it in the center of a uniform, it would no longer have the slimming effects. It wouldn't make the wearer look taller. I mean, if you put it on a hat or a lunch box, they can have the function. Sotomayor, you could have those other items. That's their whole point that they take in the pictorial design and apply it not just to a, by the way, this is not conceding. I don't think by them. They'll talk on their own and tell me that this isn't obvious. And some of your amicye brief seem to take that position that if all we're looking as is a picture of this color blocks and stripes, that it may be too obvious to qualify for copyright protection or not original enough, whatever. But my point is that they already have done that. They've taken the designs and not put it on a cheerleading uniform. They've put it on sweats. They've put it on both tops and bottoms. So what does that do for you? Sotomayor, let me respond to both of those points, the obvious in a second, first the other garments. To the extent they're putting it on other garments, if you look closely at those pictures, the design changes. It's not the same design anymore. And to the extent that it remains similar, it's because, for example, the warm-up jackets are putting those lines in the same place. So the great example of this is on page 21 of the Fromur and Bucufusco brief, where it is the Stella McCartney dresses on Kate Winslet. And she's got those slimming dark lines along the sides that change how she is perceived. It makes her shape look different to someone who's looking at her. And the lines on these uniforms do the exact same thing. Similarly, you've got in these uniforms, you've got the waist-nearowing these on the sides. It creates the optical illusion that the wearer is thinner than they actually are. Slimmer. You've got the Mueller-Lyer lines that Foller and Bucufusco have to write anything under your use of utility, under your definition of utility. Because my definition is- Sotomayor's form, I'm suspect, in most cases, every form gives something else an attractiveness to the purchaser. That's why you have designs of anything, even pictorial designs. We completely agree, and that's why it's so important that you focus on the statutory text, because under the exists independently requirement that we cite, this is right from Section 101, the feature cannot add to or change the utilitarian aspects of the useful article. So let's say that I've got a t-shirt with a happy face on it. And maybe that makes me look better because I appear happier. Well, that design has the same effect whether I'm wearing it on my shirt, my pants, my hat, or carrying it on my notebook. But here, these designs only work when they're on the article for which they were designed in the exact place where they were designed. I think- Q. Suppose you have a Picasso painting or Modarin or Clay, and it's supposed they're alive. And they licensed the use of their picture on a garment, and it does just what you say. This Picasso painting or Modarin just completely captures the shape of the article you want. The fact that it completely captures it and it means it can be copied. K. No, it does not, because the Picasso- Q. The difference in Mondrian or Picasso and these lines. K. Because I could take the Picasso, and I could just have it in a frame on the chest, or I could expand it to the entire breadth of the uniform. With these designs, the sidelines have to be right here. The V's have to be right here. The Mueller-Lyer line has to be right here. And if you would move it, say, rotate that 45 degrees. You could do that with the Picasso, and it would still look like a Picasso. If you churned one of these designs 45 degrees, it would no longer make the cheerleader look taller and thinner. How is your argument different from this Tuxedo shirt that the government talks about its unpaid 10 of the government's brief? Yes. Where the lines really do have to be just in a particular place on the piece of a barrel in order for it to make any sense at all. And there, that was found to be copy-rightable. Is there any difference between the Tuxedo shirt and this? Well, there are differences. And I think even the government would tell you if you asked in that question that that that design wouldn't prevent you from making the Tuxedo. And what we're talking about here is making the cheerleader uniform, the actual three-dimensional cheerleader uniform that you wear. And that's the lesson of section one, section one, thirteen. No, but it prevents you from making this T-shirt with these lines on it in the same way that you are saying nobody should be able to make a short dress, but those particular lines in that particular place. The point is you can have a copy-right in that design. We don't contest that varsity has a copy-right in the design. We wouldn't contest in the hypothetical I use with Justice Ginsburg. You could have a copy-right in the camouflage design, but that copy-right doesn't extend to prevent you from making the useful article depicted. That's where the line stops. So I guess I'm not sure, does that mean if you can have a copy-right in the Tuxedo shirt design that somebody couldn't draw a Tuxedo shirt because that's copy-righted to the traditional? Right. Right. You could not replicate the design, but you could make the Tuxedo. That's the lesson of Jack Edelman in Section 1. But you're saying you couldn't make the Tuxedo shirt. Is that correct or you could? You could not. Let's take it back to the cheerleader uniform and then bring it back to the text of the statute. We don't contest that varsity could take these designs and put it on a notebook, put it on a lunch box, put it on a hat, and no one could copy that. That's clearly within the subject matter of their copy-right. What they can't do is prevent someone from making the entire uniform. And the reason the statute requires that is because you have this identified separately requirement. And you say- Sinsam just for the pictures that are in their catalog. Is that what you're suing them for? We're not suing them. They're suing us. I'm sorry. You're right. I apologize. So can you get, you could stop them from using their pictures of their uniforms in their catalog? No. But you can't stop them from selling their- We can't stop them from using their copy-right to do anything on a printed page or even to take these designs. And like I said, put it on a lunch box or a notebook. But their copy-right does not- I transpose the two of you. I apologize. No problem, Justice Sotomayor. Can- are they stopping you from- do you think you can sell your uniforms anywhere? Correct. So what can't you do if we don't agree with you? If we agree with them that this is a- a- a- a- a- eligible for copyright absent some other disqualification like obviousness or lack of creativity or whatever else, okay? Assume we agree with them. What can they stop you from doing? Well, actually, if you agree with them that they have a copyright, then you're agreeing with us, too, because we all agree they have a copyright in the sketch. Okay. They have a copyright in the image. Our position is that they cannot then take that image and prohibit us from making the actual three-dimensional uniform. And the reason for that, under Section 101, is because the design neither can be identified separately nor can exist independently, which are the statutory requirements, of the utilitarian aspects of the cheerleader uniform. So, but if I could just go back and make sure I understand my question about the Tuxedo shirt. Yes. I have a copyright in the design of the Tuxedo shirt, not in a Tuxedo. I have a copyright in the design of a Tuxedo shirt. Can I prevent other people from manufacturing Tuxedo shirts? Yes. So why isn't that exactly the same? Because here I have a design in a copyright dress and now I'm trying to prevent other people from manufacturing that cheerleader dress with that design. Because that's like manufacturing the Tuxedo. And what Section 113B says is that all of the copyright law, with respect to this kind of issue, that was- I don't understand why it's like manufacturing the Tuxedo. It seems as though it's like manufacturing the thing that I have the design. And I have a design in the Tuxedo shirt. So you can't make a Tuxedo shirt. I have a design in a cheerleader dress. So you can't make the cheerleader dress. It has to do with the very careful statutory requirement that they exist independently. What that means is the feature can't add to or change the utilitarian aspects of the article. When you're talking about the Tuxedo design, it's not adding anything functional to the T-shirt. It's simply putting a design on it. When you're talking about these designs on a cheerleader uniform, it advances a number of utilitarian designs. And let me just tick those off quickly. First, it changes how the wearer is perceived through optical illusion. And that's some of the things that I've been referring to. The slimming lines on the side, the waist-nearrowing Vs, the mirror line. That's the same for all five of the inter-ainal. And I'll tick you this list, and then let's look at the uniforms. And I can show you how they do that. The second, like all uniforms, Justice Kagan, it actually identifies the cheerleader as a cheerleader, which was Judge McKeeke's point, Judge Aja. Cleveland's point below, because if these cheerleaders were wearing wrestling singlets, no one would identify them as cheerleaders. And uniforms have a special identification function. You think about military people who are in a scene mixed up with civilians. And it's the military uniforms that identify them as members of the military that tells you whether the rules of war apply to them or not. I feel like conveying information doesn't make an article useful. I don't think that optical illusions are conveying information. I don't think that identification is a major. And I get you said a function of the cheerleader's stress is to identify the person as a cheerleader. Yes, that's a second function. So let me first make clear, the optical illusions isn't conveying information. It's actually causing you to see the person differently than they actually are. So at a minimum, that doesn't fall within this. I think with the identification that allows you to sort people, that's different than conveying information like facts and figures. In addition, Your Honor, the conveyance of information is actually something that has to be considered as part of the exists independently prong. And you can see this on page two of the blue brief where we have Section 101, both the pictorial graphic and sculptural works definition and the useful article definition. And if you start with the useful article definition to determine whether something is a useful article in the first instance, you ask whether it has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. So portraying the appearance and conveying information are utilitarian functions. But if that's the only thing that they do, then it's not a useful article. But once you've decided that a garment like a cheerleader uniform is a useful article, now you turn to the separability test. So now we look at the PGS definition, right above the useful article definition, and there you're measuring the features against the utilitarian aspects of the article. It doesn't say only the intrinsic utilitarian functions. It's any utilitarian aspect. So having made the first decision, yes, this garment is a useful article, the statute requires us to consider all the utilitarian aspects of the article. And that has to be the case or otherwise, again, military uniforms, their identifying function. You could have lay people making military uniform designs and barring the government from ever being able to manufacture those uniforms themselves, even if everyone agrees that that is a useful thing. Two other quick things and functionality. These designs also define the uniform's style line and their actual three-dimensional shape. So Justice Kagan, the zigzag that they have on the bottom of 299A and 299B on page four of our blue brief, it's actually defining the shape. And everyone agrees that the shape of a uniform can never be copyrighted. There's no dispute about that. The last thing. The shape was the same on all of these, but have different designs, five different designs, same shape. No. Then maybe this would be a good time to turn to the pictures on pages four to five of the blue brief, because these are the actual copyright deposits involved. And what you can see, I'll give you a moment to pull up pages four and five of the blue brief. On page four, you have two of the deposits. This is 299A on the bottom, 299B on the top. And that zigzag actually defines the shape. And it also has the functional utility of covering up the seams and making that waistband stronger, not allowing it to stretch when the cheerleader puts it on and off. The stripes at the top that define the shape of the collar. Again, that's not copyrightable, also cover up seams. That stripe that goes across diagonally right there, that separates the white color block from the red color block. Those two color blocks have to be stitched together. And what they do is they put those stitches on the outside so that it will be smooth on the inside where the cheerleader is, and they have to cover up those seams with a stripe. So all of these things are functional. So now let's look. So there's a different result if instead of stitched, the design is applied? If it's sublimated, which is something that they've talked about, it's no different with respect to the optical illusion or the identifying function. Because if you print the same design in a cheerleader uniform, you'd have to print it exactly the same way they stitch it. But let's focus now on page five. The bottom drawing there is number 815. This is the red one with the blue stripes that go down the side. It's those blue stripes on the side, just like the Stella McCartney dress that caused the cheerleader to be perceived as slimmer and more curvy than the actual. Sotomayor. Sotomayor. I go back to this point. There's a little confused. You started by saying to me, you don't want to be stopped from manufacturing this particular uniform. Correct. What do they, what do you think they have a copyright in? They have a copyright. Or what do you think is eligible for copyright in this picture? I think the copyright eligibility in this picture is the design so long as it's not being used to prevent the manufacture of the useful article that it was intended to appear on. Like I said, they say- Why isn't that the government's position, too? Well, I think they agree with us on that point. If you look at, yeah, if you look at page 22 and 23 of their brief, they have our little black dress, and then they have this very design here, number 815. And they explain that if we're right that this design has functionality, can she do assuming that you accept what they have a copyright in sort of a cut? So this thing, but not in stopping the manufacture of the uniform, what do you think their copyright stops you from doing? Everything else. We could not print this on a notebook cover. We couldn't put it on a lunchpale. We couldn't put it on a hat. The only thing that allows us to do is to actually produce the useful article itself. And I'm talking so much about Chewley uniforms. I want to focus back on the text just for a moment because the purpose of having a separability test under Section 101 is to make sure that anything that enhances in any way the functionality of a useful article is not within the subject matter of copyright. Well, I guess that's the question. Is it really in any way? Because the opposite way of reading this statute is that the utilitarian aspects of the article that you're talking about in terms of the separability test, that those utilitarian aspects should be understood to encompass only the utilitarian functions that make something a useful article in the first place, which means that they should be held to exclude things that relate to the portraying the appearance of the article or things that relate to conveying information. And that seems to me a pretty good and misacconfused in statute, but it seems to me a pretty good, holistic understanding of this statute, that that's what the statute is trying to do, is to say there are certain kinds of things that might in a broad sense be considered utilitarian, which has to do with portraying appearance or conveying information, that for this inquiry, we want you to exclude that the separability test does not relate to those kinds of things. And Justice Kagan, that would be a possible policy that Congress could have adopted, but that's not what the statute says. When you're applying the separability test, you're comparing the features to the utilitarian aspects of the article. Not the intrinsic utilitarian function, not the ones that made it a useful article, but all utilitarian aspects of the article. And if you excluded things like uniform identifying functions, then someone would be able to prevent the military from producing camouflage uniforms if they got to that design first. And that's exactly the opposite of what Congress intended. In fact, there's been 100 years of proposed legislation where people have tried to- But the reason why camouflage is such a good example for your side is that camouflage actually we can understand it as having a utilitarian function that is different from simply conveying information and that is different from simply making something appear a certain way. In other words, the utilitarian function that camouflage has is to hide you in the woods. And so that function would not be excluded by these things. Right. But the utilitarian function of the fabric only works in conjunction with the useful article. And the same is true here. When you talk about camouflage, it's creating an optical illusion, right? We've got that picture on page one of our reply brief. And when you first look at that, you don't immediately see that there's a person standing in that tree because they are camouflaged. Well, in the same way with these cheerleader uniform designs, it creates the optical illusion that they're taller, that they're slimmer, that they're curvy or, you know, all these functions work exactly the same way as camouflage. I forget the special things. I have a picture of a dress. Now, the dress is in my mind. I've abstracted it. But when I look at those forms in space, it looks like a dress. Yes. All right. Now, you'd say I take it that when I've tried to identify the design separately, I've ended up with something that is not capable of existing independently of the unit of the utilitarian aspects of the dress because it looks like a dress. So when Marcel Duchamp has a shovel on the wall and says it's a work of art, he can have a copyright as long as he doesn't try to sue people who make shovels. Exactly. That is the identified separately portion of our argument. That's one of the points. That's one of the points. And then if you fail on that, you have all the specialized arguments about special purposes of cheerleader costs. Right. Now, the basic argument is what I said. Is that right? Yes, but the part of your description that makes me nervous is when you talk about, I'm just imagining something because that's the side-by-side test that varsity advances, that you have to just imagine and visualize whether two things can be conceived of as a result. Well, why not? It says separable from so we look to see if it's separable from it. Right. But what they ignore. What else do we have? What they ignore. What they ignore is that it has to be independent. That means completely separate on both sides of the utilitarian aspects. And so then you'll lose the utility. You know, they would say under their test that here because I can conceptualize this uniform separate from the fabric that that's enough, but it's not because if that design is doing work on the fabric in the place where it was designed to be, then utilitarian function is lost when you remove it. And that's exactly what Section 101 requires. Right. So you have to look not only at the design, you have to look at the article as well. And if the article does less work when that thing is gone, it's not separable. It's protectable. If there are no further questions, I'll reserve the balance of my time. Thank you, Council. Mr. J. Mr. Chief Justice, and may it please the Court, Congress directed the Copyright Office and the courts to protect applied art as well as fine art. Applied art is art applied to a useful article. And where that directive comes into the statute is in Section 101 and in the, in definition of pictorial graphic and sculptural works. And in the substantive provisions that implement that. Now, there are two key directives there, which the Copyright Office has faithfully implemented over many years in thousands upon thousands of registration decisions for applied art and two key principles which the petitioner rejects. Number one is that this is a hypothetical inquiry capable of existing independently of can be identified. And the second is that courts and the Copyright Office are not required to get into the question of how effective the visual or artistic expression of the Copyright work is. What do you do about the camouflage case? We think that camouflage, the idea of camouflage certainly can't be copyrighted under one. This is a special design. The things are curved one way or another that nobody else had thought of. If it's a brand new original camouflage pattern, we think, although I don't think you need to agree with me about this in order to agree with varsity in this case, I do think that an original camouflage pattern could be copyrighted and then reproduced on backpacks, iPhone covers, you know. Can it be reproduced on a military uniform or a hunter's garbage? I think it could, the copyright could extend to that. If that case, if camouflage is not copyrightable in that extent, that's for reasons that I think exactly as Justice Kagan said to my friend. For reasons having to do with the utility of the camouflage design itself, not of the useful article on which it appears. And in this case, you know, our position is that the graphic designs, the striped chevrons and color blocks, they are separable from the useful article on which they appear. If you take them off the useful article, you have whatever color the fabric is a white dress. But if you look at somebody in the white dress, you don't say, oh, that's the cheerleader. Well, respectfully, Mr. Chief Justice, you could have a white cheerleading uniform worn by a cheerleader with the team name and team logo on it. And I think that we've given examples of why that is, in fact, from the 1950s. Well, you could have it. You could have, if you look at page 34 of the Joint Appendix, you'll see in Starr's own catalog examples of uniforms that have neither striped nor chevrons nor color blocks. Those simply aren't essential to identifying a cheerleader as a cheerleader. Even if identifying were a function that's cognizable under the statute, which it is not. You know, ultimately, the design can be taken and put on other articles. It could be put on, you know, as I said before, an iPhone cover or on the warm-up jackets that are in reproducing the joint. I know. Your friend on the other side concedes that those could be copyrighted. If you take the design of a particular cheerleading uniform and put it on the lunch box or the computer cover, yes, those can be copyrighted. But because it is the design that makes the dress a cheerleading uniform, you can't separate, you can't copyright the design applied to that functional article. Well, let me resist the premise, of course, that this particular design or these five particular designs of striped chevrons and color blocks are what make a cheerleading uniform cheerleading uniform. But even setting that aside, if you look at section 113a, which sets out what rights the owner of a copyright and a pictorial graphic or sculptural work has, those right include the right to make copies of it, to embody the design in or on any kind of article, including a useful article. And, you know, what might be convenient for Star to have a right that just doesn't extend to the product that they want to make. That is not the statute that Congress enacted. You have the owner of a copyright and a visual work, pictorial graphic or sculptural work, has the right to embody it on use for it. I think you're avoiding the question. Yes, you can have a copyright in the pattern. And yes, you can attach it to a useful article, like a lunch box that's going to have the design. But the question is, when the design is what makes that useful article what it is, the design on a lunch box doesn't make the lunch box a lunch box. It's still a lunch box. But the design on a cheerleading uniform is what makes it a cheerleading uniform as opposed to a plain dress. Well, I guess I just have to resist the premise that this particular, these particular designs are what make a cheerleading uniform. Well, resisting the uniform. But if you understand you are resisting the premise has applied to your case, but is that right as a general test that if it is the design that makes the article what it is in its utilitarian aspect, that that cannot be copied? I think that's exactly the kind of utility that Congress did not write into the statute. That is not the kind of utilitarian function that Congress contemplated. And I think that the best evidence of that is both in the legislative history, meaning the House report, and also in the registers testimony about what the Copyright Office had been doing for decades, explaining to Congress in the course of adopting the 76 act. Both the register and the House report say that virtually all two dimensional designs applied to useful articles are going to remain copyrighted. Ellen, House report is not the law, right? To be sure, we're not saying that it is, but we are saying that if you look, it is perfectly consistent with our view of what a utilitarian aspect of a useful article is. And we also think that, you know, again, you don't, even if the House report had not said, we are intending to codify this Court's decision in measure and the Copyright Office practice. This Court, I think, would have presumed that Congress was doing so. Here, I think that presumption is amply justified. So you're saying that the cheerleading uniforms do not serve a utilitarian purpose? We're saying that they don't serve the utilitarian purpose, that the purposes, my friend attributes to them, are not utilitarian aspects of the article under the statute. They are certainly a utilitarian. They cover the body. They, you know, they provide mobility. Kagan, does every university that contracts with you know that they have to buy their uniform from you for 99 years plus whatever? Every university that you sell, you know, these cheerleading uniforms, too. Do they know that under your copyright, they're stuck with you forever? No, Justice Sambar, that's not the case. Why not? If you have a copyright on this design, and they've adopted their school colors, orange and black, and I presume some of these are cheerleading uniforms belonging to certain teams, they buy them and they put their names on them, correct? Sure. School certainly put their names on cheerleading uniforms. So why aren't they stuck with you being their only supplier of their school colors for the rest of their existence? There are many, many, many variants available, you know, both copyrighted and uncopy righted, you know, variants of cheerleading uniforms that, you know, varsity and its competitors can sell. Again, there are examples in the joint appendix, you know, at the page that I refer to. So I'm right. So at once a school, you design a uniform for school, that's it forever. Well, respectfully, Justice Sambar, Justice Sambar, if we, if we design this particular combination of elements, then we do own the, we do own a copyright in that combination. But we don't own the idea of an orange and black cheerleader uniform or a black and yellow uniform. No, but the point, the question is, I think, because I have exactly the same question. It starts with a premise that everything has design. Some really, a lot of that set can be copyrighted. All women's clothes have design. All men's clothes have design. For a hundred and more than that years, the fashion industry has not enjoyed copyright protection. It is an industry on the women's side, I believe. But $225 billion, at least, worth of clothes, are sold every year. If suddenly in this case, we say that dresses are copyrightable. And they are, because every one of them has some design, perhaps will double the price of women's clothes. Now, if that's, that's, I think, the thrust of the question, and that is a practical question. I also have a conceptual question, which I'd like to ask, but why don't you disabuse me of my notion that we are into monopoly big time? Sotomayor's question was about the particular pattern. And mine is about all dresses, all clothes, all suits. You're killing knockoffs with copyright. Well, you haven't been able to do it with trademark law. You haven't been able to do it with patent designs. We're now going to use copyright law to kill the knockoff industry. I don't know that that's bad. I'm just saying. So let me clarify at the outset, we're not claiming the shape, the cut, or anything like that about these garments. Look at page 60 of our brief, and you will see cataloged all the places where we set out what our registration is in. It's in the two-dimensional artwork that appears on the surface. So I see it here, and as I look at it, and cut away the gums, I have left. This is page 22 of the SGs, brief. What I have left is I have left. This is the design you're after. It is a two-dimensional design that looks to me very much like a dress. It looks very much like a two-dimensional picture of a dress that covers a woman's body. Now. But just not to what you want to copyright. That thing. Absolutely not just that. It's not that you have a different design here than we're not talking about figure eight. We're not talking about figure eight. There are design infigurate. If you look at the registration that corresponds to that figure, which you will find in the joint appendix at 46, you will see that the registration is for two-dimensional artworks. So. Of course it's a two-dimensional, look, I can do a two-dimensional artwork that looks like a Rubik's cube. I mean, a two-dimensional artwork can look like a three-dimensional thing. But it's the two-dimensional artwork that appears on the surface. It is not that we did a two-dimensional picture of a dress and said, now we own the dress. You didn't say you own the dress. What you said is you own the design of the dress. Now, you don't? No. We say that we own the design that appears on, in that case, on the dress, but that can also appear on the warm-ups. It can also appear on the jacket. So you own even more. Now, wait, I have a conceptual question. I'm not yet satisfied with your answer to the practical question, because I fear that any good designer or lawyer could go and take any dress or suit just about and produce a picture that looks very much like that and then sue the companies that use the same dress or style. That's my practical, but this is the conceptual. Since we can take, since we can take anything, anything, to a two-dimensional picture, and put it on the wall like Marcel Duchamp. If I decide in your favor, am I not allowing copyright for virtually assuming other things satisfied, every design of a useful article, the very thing that Congress said they did not want. No, absolutely not, because the ability to take the shovel and hang it on the wall does not make the shovel a sculpture because the things that make the utility. The reason why I'm talking about the shovel at the moment. I am talking about an artist's ability to take a piece of clothing, which is a utilitarian object and do a two-dimensional picture of the piece of clothing, which, and have some things on it, some Chevron, if you're not, it just looks like a dress. Now, on your theory, does that not become copyrightable? Only in the surface design, not the folds, not the pleats, not the shape, not the cut. And my friend agreed, Mr. J. Kennedy. The surface design. I have a similar question, but suppose I go to a Museum of Modern Art, and I look at a great many famous abstract paintings. I assume that you would say that all of those could be copyrighted, could they not? You know, if they're original and meet the other records, that's one, assume so, yes. And so the design on any fabric potentially could be copyrighted, could it not? The surface design. If it was, if it began as a painting. The owner of the copyright in that painting has the right to reproduce it on fabric, on other textiles, you know, or, you know, on a tapestry, on a rug or on wallpaper, absolutely. And isn't it just starting from the premise that Justice Alito suggested, the fabric designs are copyrightable? Is that correct? That's what I was starting to say just as far as my friend agreed that fabric design is copyrighted. So it seems to me that the question, right, that in this case, is, are you going to treat this kind of design just as you would a fabric design? And as I understood Mr. Berges' point, what Mr. Berges' saying is, no, you shouldn't because this kind of design has, it follows the figure of a human body, essentially. And that's the difference between just a design of like stripes and zigzags and chevron sort of abstractly, and then one that's put on something that looks like a particular piece of a parallel that's meant to fit onto a human body in a particular way. And that seems to be the distinction he's making, and I want you to tell me why that distinction in your view doesn't make a difference. Berges' point is that it doesn't make a difference because what he's identified a number of different, supposed utilitarian aspects, and some of which I think actually go to the fabric of the dress and we're not, or of the uniform, we're not laying claim to that. What he's talking about are the visual ones, the ones that make the cheerleader look up a particular way, and he's saying that you can't copyright those as applies to a cheerleader in uniform because they're especially useful there. Like, that's where they are most effective in conveying this image. We think that is not what the definition of utilitarian, the meaning of utilitarian aspects encompasses because any work of visual art conveys a visual message or an aesthetic impact, and to have the ones that are most effective be least copyrightable, we think doesn't work. And I think that's the difference between that utilitarian argument and the utilitarian argument as applied to camouflage. The utilitarian argument as applied to camouflage is that it's, I mean, as I said to the Chief Justice, I mean, we do think that if you see camouflage as portraying the appearance of a particular thing or sending a message that you belong in a particular group, that would not be copyright eligible. Sorry, that would not be a utilitarian aspect. If camouflage is not copyright eligible, it's because it performs something that's different from making you look good in an aesthetic way. It's because it conceals. Now, ultimately, we think the best answer is that- Why should that make a difference? I mean, the word utilitarian is the key word in the definition. And I think maybe using one of the fine arts examples might help to illustrate this point. If you look in the amicus brief of Professor Buckoflisco and Fromur, they have, in their illustration number one, is the fresco painted on the dome of a church. And they say that's not copyright eligible because it uses techniques to make the dome look bigger. And now, you certainly can't get a copyright in the idea of Trump-Loy art, but you certainly can get a copyright in a work of fine art that decorates a room or a rug or a useful article. And that makes the room look better or makes the person who wears it look better. The fact that it's effective, that it makes, you know, it serves to make that particular church look bigger, that is not a reason to withhold copyright protection. That's the argument. The argument is not that it makes the room or whatever look better. The argument here is design makes this look like a cheerleader uniform, which is different distinctive function in a, then, a normal dress. Well. It's not simply to cover the body. It's to convey a particular message. It shows that you're a member of the cheerleading squad and. Well, if that were true, Mr. Chief Justice, they'd have a decent argument under the merger doctrine if there were, if there were only a few ways of expressing that you are a cheerleader and that you are wearing a cheerleader uniform. You can't get a copyright in an idea. That's 102B. The merger doctrine, not this Utilis-Harian separability analysis that we've been talking about, the merger doctrine is the primary way in which courts and the copyright office can, you know, prevent the owner of a copyright from locking up the ways of expressing a particular idea. So that, if on the facts, there were only a couple ways of looking like a cheerleader, that would be the way to get at that. You were on the same page. I'm really wrong. Under your argument and as you best understand your colleague's argument, to what extent are there findings of fact involved here? I mean, are we the ones that decided you wanted to introduce expert testimony? What was the expert testimony you wanted? The other side wanted to introduce expert testimony, Your Honor. Petitioner told this Court in page 40 of the petition for SERT that this is a pure legal question. We agree that under the correct analysis, it is a pure legal question, but we think that's a real vice of the other side's view that they are asserting, you know, essentially as a matter of law, that certain things are necessary to be a cheerleader, that certain things are influenced by function or are. Or you just said that. You said there are a lot of other ways to show that somebody is a cheerleader, and, you know, maybe I started to try to think of them, and you know, it's not just that they all look alike, it's, so maybe that's one area in which you have testimony, that 95 percent of the cheerleading squads look like this. So maybe there aren't other ways. Well, ultimately, the question is the hypothetical question, whether this design can, you know, can be identified separately from the articles on which it appears, and whether it has an, it has an existence separate from those articles. And when you say this design, I'm sorry, Mr. Kennedy. No, no, I think. When you say this design, just to make sure I understand what you're claiming copyright in. So if I'm looking at page four and there's this design with the blue stripe and a white stripe and a red stripe and a white stripe and a blue stripe, could somebody else come along and just add another red stripe to that? And would that, would you then say you violated our copyright? Our copyright is in the arrangement of the design elements. The particular arrangement. So if somebody just added a different, another stripe. Well, adding another stripe is, I hesitate to agree with because usually reproducing a copyrighted work and then adding some stuff around it is not enough to avoid infringement. But if they changed the colors and reordered the elements, I think they'd have a good argument that it's not infringing. Thank you, counsel. Mr. Fagan. Thank you, Mr. Chief Justice. May I please the Court? This case is about the reproduction of two-dimensional artwork on a useful article. The question here is fundamentally indistinguishable from the Tuxedo shirt that my friend conceded would retain copyright protection or putting a sports team logo on a T-shirt that identifies somebody as a team member or a fan. Or putting camouflage on a military uniform. So your honor. Camouflage has been protected by copyright for decades. The copyright offices practices on that reflect the view that camouflage is generally eligible, at least for a very thin copyright, in the creative elements of a particular camouflage pattern that aren't dictated by the underlying ideas and scientific principles that make it work. He even has applied to a military uniform. So as applied to military uniform, if someone were asserting a copyright in camouflage in such a manner as to prevent the manufacturer of a uniform from actually manufacturing a uniform that would perform a concealment function, and if concealment were, as Justice Kagan was positing, considered to be separate from the sorts of expressive functions that are traditionally protected by copyright. There might be infringement the answer. And there might be some infringement defenses that would apply in that context. But what I think this is spewed in this case is really boiling down to is a question of what the utilitarian aspects of a useful article are. And I think there are two the petitioners identifying. One is conveying the information that someone is a cheerleader, identifying someone as a cheerleader. And the other is affecting the viewer's perception of the wearer's appearance. And I'd like to just explain overall. What about the woman or the man who wishes, and indeed this is a normal reason for wearing clothes, they're making a statement about themselves. They're saying who they are. The clothes on the hanger do nothing. The clothes on the woman do everything. And that is, I think, what fashion is about? It's so romantic. It's so romantic. It has been in history now, isn't that it? What? Well, your Honor, it is- Why do we wear robes? Your Honor, it is clear, and it's common ground among the parties, and with the copyright office, that the actual cut and shape of a garment isn't copyrighted. What about Lemley's test on page 17 of his brief? As I read it, and I thought, and I'm sure you've read it, and it seemed to me that it does say that a two-dimensional picture of a three-dimensional piece of clothing is not entitled to copyright, because it is not a design of anything but a utilitarian object of clothes, whether they are beautiful clothes, ugly clothes, cheerleader, or anything else. Well, Your Honor, I think I, we disagree that you can't take the aesthetic aspects of the cheerleading uniform and put them in a different way. Now, but do you agree with Lemley's statement, which I mean, it's such an- No. The old professors are there. Your Honor- That's why I thought, probably, you've read it, and it's from all over the country, and I wanted to get your opinion up here. Your Honor, as you've characterized the statement, we don't agree with it. We do think the two-dimensional artwork here is separable from the garment, the cut and shape of which is not copyrightable. Let me just make a couple of points. One is about the act and what it's doing overall. The act overall is drawing a distinction between the kinds of aesthetic, communicative, expressive functions that are traditionally protected by copyright, and the kinds of mechanical, pragmatic, utilitarian functions that are exclusively the domain of a useful article. And the kinds of functions that Mr. Burses is talking about here are fundamentally expressive functions. First of all, conveying the information that someone is a cheerleader, when someone is wearing a particular piece of clothing intended to convey that they're a member of a particular group or that they hold a particular belief, that is the kind of expressive function that copyright traditionally protects, and indeed there's an express exception in the definition of a useful article for conveying information. And I think it's indistinguishable from putting a sports team logo on a t-shirt to identify someone as a Washington Capitals fan, for instance. Well, what do you do with Mr. Burses' examples of military uniforms or police officer uniforms, something like that? So, Your Honor, those also are conveying information. Now, if someone were trying to assert a copyright in the design of a policeman uniform in such a way that it turned out there were, say, only a limited number of ways to identify someone as a policeman, and a copyright were being asserted to prevent identification of someone as a policeman, then the defenses that we discuss at pages 39 to 40 of our brief, the merger doctrine, the sends a fair doctrine, would apply to prevent what would effectively be monopolization of that idea. So, if that were really happening in this case, and there's some reasons to think that's not actually happening in the cheerleading realm, and we discussed those in our brief, that that were happening, those defenses would apply. Good about the Galeano case. That was the casino uniform. Why is that different from the cheerleader uniform? Well, Your Honor, we don't agree with the result in the Galeano case. To the extent there were some sort of unique two-dimensional elements that some casino wanted to put on its uniforms to identify its employees, that artwork would be copyrightable, and just like the cheerleading uniforms in this case. I also want to address the argument that- Well, before you get away from it, one thing very quick is maybe I really agree with you. I had looked at page 22 of your brief at Figure 8, and what I had seen there when I took the arms away was a picture of a thing that was a picture of the cut and style, and not just a picture of chevrons. And so, but if that's what it is, then you would agree, and I would agree that it's not everybody would agree, I guess it's not copyrightable. The point of Figure 7 and 8 in our brief, Your Honor, is that everything you see in Figure 7 that's also in Figure 8 is not copyrightable. That's the cut and shape of the dress. It's the stripes and the coloration, the lines, and the design, and this particular arrangement. So what happens if when you look at the picture that they submit to the copyright office and try to figure out if it's separable, what you see is a picture of a dress that goes around a woman which does look like shape and cut and stuff. So they have generally checked a box as they did here that says two-dimensional artwork, and the copyright office understands all they're trying to protect is the surface imagery of the garment, and that they'll register. I do want to address this idea that making the viewer look different is somehow the kind of non-expressive function that is associated with the useful article, with the useful article, and I think that approach would be contrary to congressional intent and completely inadministrable. If you look at page 55 of the House report, you'll see that Congress believed that two-dimensional designs on fabric or on wallpaper would be separable and thus copyrightable. But that wouldn't be true under the approach petitioners urging. Under that approach, you'd have to look at a particular two-dimensional design on wallpaper and try to assess whether and to what degree it might make the room look bigger or brighter or smaller or darker. I'm not aware of any scientific, reliable or suspiciously. Sotomayor. But on the other hand, it seems a little bit strange that you don't take a garment designer who wants to do a design that is slimming. And if you, there are all kinds of structural things you can do that are slimming, and those would not be copyrightable. Then you're saying that the placement of stripes or color that is copyrightable, even though the garment designer is really trying to do the same thing through color and through graphic design as he was doing through the shape of the article. So you're going to definitely think there is a spectrum here, but let me try to explain why I think this is on the expressive side of the line, not the non-expressive side of the line. If I were to wear a shirt that said, please focus on my very nicely toned arms. I've worked very hard on them. I think we'd all understand the message conveyed by that shirt to be expressive and separable from the non-expressive functions that the shirt performs covering my body. Now, what the kinds of things that we're talking about here are essentially sending that same message albeit in a non-verbal, more subconscious way. But they're still fundamentally expressive because they're about how the wearer is trying to portray themselves and their appearance to the world. And that's all that's being copyrighted. That's traditionally within the domain of copyright. It is not copyrighting particular functionality. It's in the domain of copyright to copyright the way people present themselves to the world. The way that someone expresses an idea to the world, in this case, the idea would be how they look is something that is very akin to traditional expression that's protected by copyright. Again, here we're just talking about two-dimensional artwork. If we adopted a petitioner's view, the copyright office, when it looks at a particular two-dimensional design, would have to figure out what effect it would have in all sorts of contexts on various useful articles. So the whole point of the end of the case is we're not just talking about two-dimensional artwork. We're talking about two-dimensional artwork applied to the fabric in a way that conveys a utilitarian function. It's not just the two-dimensional. Your friend concedes that if you want to put a picture of this on a lunchbox or whatever, that you have a copyright in that. It's only when you apply it to a garment because it is what makes that garment a cheerleading outfit, as opposed to somebody else. It serves that utilitarian function that you don't have a copyright. Well, I think our fundamental disagreement is whether this is actually performing utilitarian functions, if I could just share my response. And I think one problem with the approach you've just articulated is it really divorces Section 101 and Section 113A because you could get a copyright in the illustration and then he would say it's not copyrightable in certain applications. And that doesn't make much sense. Thank you. Thank you, Council. Mr. Bursch, six minutes. Thank you, Mr. Chief Justice. I want to start with that final point that the government makes, that if you had a statement that said, look at my arms on your shirt, that somehow that would be conveying the same message, that's not what this is doing. No one is saying, look at my arms. Like with camouflage, you're not saying, look, you can't see me. The camouflage is actually doing work when it's put in connection with the garment that it was designed for. That's the point. And on that point, Justice Kagan, I just want to make clear about the functionality that we're claiming here with respect to these designs. It's not just that the lines follow the figure of the human body. It's that they actually make the human body appear to look different than it would if they were not wearing those designs. Just like camouflage. I mean, the colors are just colors. You can, what he's saying is you can achieve the same thing with probably most colors and stripes and whatever else is in this. Well, they're not claiming copyright in the colors. They can't. They're claiming the arrangement. And I would say, even as to color, this Court in the Qualitex case, that was a trademark case, you said that black, the color black, has the ability to be used in the color black, to make a motor look smaller than it actually is. It has a function that makes it ineligible for trademark protection. And really, that's the same thing that we're talking about here. That you can use graphic design like camouflage. You're going further. You're now saying that any, then you're saying there's no copyright. Oh, no. Most things. We're saying. I'm most pictorial representations. They can always be applied in a way that has a function. That's not correct, because if you took the sports logo that the government mentioned, that's a perfect example of something that doesn't require the garment for its functionality because just like we were discussing earlier, you could take the logo and you could put it on your hat or your socks or your lunchpale or on your, your mitten that you hold up when the folks at the home run, right? Because it doesn't have, it doesn't rely at all for the article on which it's appeared for its functionality. But here, these designs rely entirely. Right. Exactly. And if we say you're saying, even if you find a color rainbow of some weird elk, that could never be copyrighted. Because they could have the copyright in the two-dimensional design. But if there was an application where it would create functionality when paired with a garment, then yes, their copyright would not extend to the bed. How about the gorilla? The gorilla's hand around your, one of the pictures is- Right. That's a much closer case than this one. For starters, if we're walking through the analysis, first you look at the identified separately. And here, when you look at the arrangement of the stripes and the color blocks and the chevrons, you see the cheerleader uniform. And this is Justice Breyer's point about page 17 of the Lemley brief, right? That the aesthetic elements exist only as part of a cheerleader uniform. There's nothing to extract. That's why this case is different than the gorilla case. So then what you have to ask is if the t-shirt in that case was less functional without the design. And I think that's a close call. But this case is like the camouflage because it's doing the work of changing the way the body is perceived, just the way camouflage changes the way the body is perceived. And just like military uniforms, having an identifying function, which is extremely important. So I bring this all back to what the Chief Justice said, isn't it the test if it's the design that makes the article what it is, then you can't copyright it. And I would say that that's almost exactly right. They can copyright the design and prevent reproduction of the two-dimensional design on the notebook or the lunchbox. But if it's the design that makes the article what it is, you can't prevent that. How do we decide that it's the design that makes it what it is, as opposed to the cut of the garment, the shape, the pleats, so whatever. The tightness of the top. Why should we say that this two-dimensional design, which could be put on many things, is what makes this article utilitarian? What do you do about the shape? Well, here, it's more than just the shape. If we go back and look at these. We, everybody agrees that the shape, the cut of the dress, that the garment itself is not copyrightable, right? Correct. Everyone agrees. So we're talking about the design. Yes. So why isn't this close to a fabric design? Because, again, the fabric designs work anywhere, any place, no matter how you move them. If we're looking at page five and you've got the waist narrowing these, which are not the shape of the dress, but they make the illusion that the shape of the dress is cutting in to make you slimmer, those only work in that particular place on this article. If you put those on the lunchbox, they don't make the person look narrower. They don't even make the lunchbox look narrower. The design, the shape of the design's work, just like the shape of the garment itself. And that's why this is different than that flowered print that we were talking about in the folio case. In conclusion, I want to go back to what Justice Breyer and Justice Sotomayor said. That if you recognize that their two-dimensional copyright extends to prohibit the manufacture of actual three-dimensional cheerleader uniforms, then you're giving them 100 year of copyright monopoly and that school can't go anywhere else. And that's really ironic because you have to keep in mind that school just doesn't just go to somebody who puts a zigzag where the chevron was or chevron where the zigzag was or makes it a couple of different colors or adds another stripe. I mean, there's this, my clerk found, I'm sorry, just at that. You can. I'm done with my question. As my friend on the other side said, it would still be a copyright problem because they would claim that it was too close to the original. And you can see from the last two pictures that we have in our reply brief that there are only certain places that these stripes and chevrons and color blocks can go or otherwise it doesn't look like a cheerleader uniform anymore. It doesn't identify the person, certainly doesn't have the slimming effect, the making taller effect, and all the other things that camouflage do. So we respectfully request that you not grant a 100 year copyright monopoly in design. Thank you, counsel. The case is submitted

Legal Case Summary

Star Athletica, L.L.C. v. Varsity Brands, Inc.

Date Argued: Mon Oct 31 2016

Case Number: 15-866

Docket Number: 4485841

Judges:Not available

Duration: 62 minutes

Court Name: Supreme Court

Case Summary

Star Athletica, L.L.C. v. Varsity Brands, Inc.

Oral Audio Transcript(Beta version)