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Libraries cheerlead for fair copyright

I’ve written a lot about 3D printing on the District Dispatch. One of the most unlikely topics I’ve discussed in connection with this technology is cheerleading…That’s right. If you’re a loyal DD reader, think back to May. If you’re hearing bells ring, that’s because the first week of that month, I outlined a court case between two manufacturers of cheerleading uniforms. The case pits international supplier Varsity Brands against the much smaller supplier Star Athletica. Varsity Brands is suing Star Athletica on the grounds that the latter’s uniforms infringe on its copyrighted designs. Even though copyright protects creative expression and cheerleading uniforms are fundamentally utilitarian, Varsity Brands’ argument rests on a liberal interpretation of something called “separability.” If a utilitarian item has creative elements that can be clearly separated from its core “usefulness,” it may receive copyright protection. Varsity Brands says that the stripes and squiggles in their uniform designs represent these sorts of elements.

Young cheerleaders.
Photo by Peter Griffin.

The courts are divided on this argument…But the U.S. Supreme Court has agreed to hear the case and give Varsity Brands, Star Athletica and copyright junkies everywhere a final and – hopefully – clarifying ruling. So, what the heck does this have to do with 3D printing? Actually, a lot. If the Supremes were to come down in favor of Varsity Brands’ interpretation of separability, they would set a dangerous precedent: any design that’s not 100 percent functional – i.e., has one or more elements with even a whit of creativity – might be protected by copyright. Imagine the fear of infringement this might instill in an avid “maker.”…It would likely be enough to hamstring his or her creative potential. Thankfully, the 3D printing community thought of this early.

As I mentioned in my last post about this case, industry players Shapeways, Formlabs and Matter and Form already submitted an amicus brief to the Supreme Court warning of the “chill” an overbroad interpretation of separability in the Varsity Brands case might place on 3D innovation. Believing as we do in the importance of creativity inside and beyond library walls, the library community has decided to pick up its pom-poms and stand alongside them. ALA, the Association of Research Libraries (ARL) and the Association of College and Research Libraries (ACRL) have signed onto a similar brief penned by the D.C.-based public policy organization Public Knowledge. The brief argues that: “…copyright in useful articles ought to continue to be highly limited, such that a feature of a useful article may be copyrighted only upon a clear showing that the feature is obviously separable and indisputably independent of the utilitarian aspects of the article.”

Our argument on this case is in keeping with one of the basic tenets of our efforts to promote public access to information: that copyright should be limited and promote progress and innovation. Lucky for us, we have the Constitution on our side.

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Charlie Wapner

Charlie Wapner is an information policy analyst for the Washington Office.

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