{"id":21948,"date":"2015-08-21T16:06:27","date_gmt":"2015-08-21T16:06:27","guid":{"rendered":"http:\/\/www.shapeways.com\/blog\/?p=21948"},"modified":"2017-04-17T12:09:21","modified_gmt":"2017-04-17T16:09:21","slug":"q-what-brings-cheerleaders-and-3d-printing-together","status":"publish","type":"post","link":"https:\/\/www.shapeways.com\/blog\/q-what-brings-cheerleaders-and-3d-printing-together","title":{"rendered":"Q: What Brings Cheerleaders and 3D Printing Together?"},"content":{"rendered":"

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Image courtesy petful<\/a>.<\/em><\/p>\n

A: Copyright law, of course.<\/p>\n

There is a <\/span>new legal decision<\/a> by the Sixth Circuit Court of Appeals in the United States that brings together cheerleading uniforms and 3D printing.\u00a0 It isn\u2019t a game changer \u2013 the decision doesn\u2019t fundamentally rewrite legal rules \u2013 but it does shed some light on what is likely to be one of the thorniest issues around 3D printing and intellectual property law: a copyright concept known as severability.\u00a0 The question addressed by the court was seemingly straightforward: are the decorations on cheerleading uniforms a critical part of their functionality?\u00a0 The way the court found an answer to that question will help us understand what types of 3D printed things are \u2013 and are not \u2013 protected by copyright.<\/span><\/p>\n

I clicked on the link but now am thinking I don\u2019t want to read all of this: what\u2019s the short version?<\/b><\/p>\n

Severability is the test that US courts use to figure out which parts of things that are both functional and decorative can be protected by copyright (if any).\u00a0 There is now a new test to determine this in part of the United States.\u00a0 The test itself (arguably the tenth test currently being used) doesn\u2019t bring a lot more clarity to the issue, but is an excuse to walk through how all of this works.\u00a0 Most of this blog post just explains how the court applied the test in this one case.<\/p>\n

Still with me?\u00a0 Let\u2019s go!<\/p>\n

Background Point 1: Useful vs. Creative<\/b><\/p>\n

As explained in the Introduction to Rights and Protections<\/a> post, there is something of a divide between objects that are eligible for copyright protection and objects that are eligible for patent protection.\u00a0 Creative objects can get copyright protection while functional objects can get patent protection.\u00a0 In theory these two categories are mutually exclusive.\u00a0 In practice, some objects can be a little bit of both.\u00a0 Courts use \u201cseverability\u201d to try and determine if the mixed elements of a single object can be separated out and protected individually.<\/p>\n

Oh, and as a general matter clothing and uniforms are considered a functional object \u2013 they keep you warm and not naked.<\/p>\n

Background Point 2: Severability<\/b><\/p>\n

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While a lamp is a useful article, the leg sculpture that forms the base of the lamp can be severed (both physically and conceptually) from the lamp’s utilitarian function and given independent copyright protection. Image from flickr user Spider.Dog<\/a>.<\/em><\/p>\n

Severability is key to understanding copyright protection in objects that mix functional with non-functional items.\u00a0 As a general rule, functional items do not get copyright protection. However, if a court can sever non-functional elements from functional elements, those non-functional elements can be protected by copyright.\u00a0 This severability can be \u201cphysical\u201d (because the parts can be physically separated from each other) or \u201cconceptual\u201d (because the parts can be conceived of separately from each other).\u00a0 All of this stuff is covered in more detail in the What\u2019s the Deal with Copyright and 3D Printing?<\/a> whitepaper.<\/p>\n

Enough \u2013 What is This Case About?<\/b><\/p>\n

\"The<\/p>\n

The uniforms in question.<\/em><\/p>\n

Cheerleader uniforms.\u00a0 A company named Varsity Spirit designs and sells cheerleader uniforms.\u00a0 Their uniforms include colors, stripes, chevrons, and other patterns.\u00a0 Star Athletica makes cheerleader uniforms with similar combinations of colors, stripes, chevrons, and other patterns.\u00a0 Varsity accused Star of copying their uniforms and brought a copyright suit against Star.\u00a0 Star responded that it could not infringe on Varisty\u2019s copyright because the patterns on the uniform where not eligible for copyright protection.<\/p>\n

Essentially, Star said that Varsity\u2019s patterns were functional parts of the cheerleader uniform.\u00a0 They helped mark the uniform as a cheerleader uniform as opposed to, say, just a pleated skirt and tank top.<\/p>\n

That\u2019s what makes this a severability case.\u00a0 Varsity says that the patterns are severable from the utilitarian uniforms and therefore should be eligible for copyright protection.\u00a0 Star says that the patterns are a core part of the uniforms which cannot be severed \u2013 and therefore cannot be protected by copyright.<\/p>\n

How Did the Court Work Through This?<\/b><\/p>\n

Severability is easy(ish) to explain but hard to apply in specific circumstances.\u00a0 After noting that there are at least nine (listed on pages 17-19 of the opinion<\/a>) different tests of severability in use, the court decided to come up with its own 5(ish) part test.<\/p>\n