
Cheerleading company can get copyrights, pursue competitors, Supreme Court says - danjoc
https://arstechnica.com/tech-policy/2017/03/cheerleading-company-can-get-copyrights-pursue-competitors-supreme-court-says/
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danjoc
It would appear that "fashion's free culture" just ended.

[http://www.ted.com/talks/johanna_blakley_lessons_from_fashio...](http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture)

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wahern
I dunno. SCOTUS reaffirmed the traditional rule, that to be copyrightable the
elements need to be separable (as if lifting them off the clothing) and
substantial (what you lift off must by itself meet the baseline requirements
for copyrightability).

What SCOTUS did do was broaden the scope of the traditional rule by killing a
narrow historical exception that would typically have rejected the dress'
elements outright, without any serious analysis.

For the most part it's the traditional rule and how its typically applied that
keeps the garment industry relatively unencumbered. This decision sucks[1] but
I'm skeptical that it's particularly consequential. Their rejection of the
Batmobile case last year, which in hindsight presaged this case, was arguably
much more consequential.

As an side: any Ginsburg fans out there, know that she's rabidly pro-
copyright. Her daughter is a famous and influential copyright scholar and
author of an important legal treatise on copyright. Both of them eschew
traditional, common law restrictions on copyright in favor of a more modern,
abstract, and simplified conceptual approach that would on balance
significantly enlarge the scope of copyrightability. Notice that in her
concurring opinion in this case, Ginsburg side-stepped the separability
condition applied to clothing. Her approach is more likely to induce a
monumental shift that could engulf the fashion industry in an epic hell of law
suits.

[1] Because brightline exclusions of copyrightability are easier and cheaper
to apply by both laymen and judge alike. Even copyright proponents can
appreciate how casting aside such well-established exclusions creates
tremendous uncertainty and risk for everybody.

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danjoc
>engulf the fashion industry in an epic hell of law suits

That is exactly what I expect will happen.

