uniform design and there are three points that support that conflict from who's in first by subjecting two dimensional pictures and graphics as well as sculptures to section one a one step ability test congress made clear that two dimensional and three dimensional designs must be analyzed for supper ability second under section one once text the dispositive questions are twofold whether the design features can be identified separately from the use for articles utilitarian aspect and second whether they can exist independently that is the design features do not add to or change the use of articles utilitarian why has this case would we even need to get any question of step ability what was submitted was that military uniform they designed 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 that is nine 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 one hundred one not only two dimensional or three dimensional but also two dimensional designs are subject to separate billet and there's a second reason and justice ginsburg what you're referring to generally is kind of the area of fabric design and a good example of fabric design is the flowers on the fabric in the folio impressions case that we reprint i'm page seven of our reply brief and those flowers you could expand the design you could you can make any article of clothing out of it whatsoever you could rotate it forty five degrees and it always works functionally the same here when you're talking about these cheerleader uniform designs the arrangement of the color blocks in the chevrons and the stripes if you made it smaller and that position that if war were looking as is a picture of the skull or 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 put it on sweats they put it on both tops and bottoms so what does that do for you let me respond to both of those points the obvious mistake at first the other garments that 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 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 neuroimaging vs the sides it creates the picture designs we completely agree and that's why it's so important that you focus on the statutory text because under the exist independently requirement that we cite this is right from section one hundred one the teacher cannot add to or change 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 while that design has the same a fact whether i'm wearing it on my shirt my pants my hat or carrying it on my notebook the use of their picture on a garment and it does just what you say this because no painting or mode just completely captures the shape of the article you want the fact that it completely captures that moment is part means that can be copied if you turned one of these designs forty five degrees it would no longer make the cheerleader look taller and thinner how is your argument different from this text cheetos shirt that the government talks about it's on page ten of the government's brief yes where the lines really do have differences and i think even the government would tell you if you asked them that question 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 one section or section one thirteen no but i'm proud of you it prevents you from making this t shirt with these lines on it in the same way that you were saying nobody should be able to make a short dress and the one to take it on lines in that particular place point is you can have a copyright in that design but we don't contest that varsity has a copyright in the design we wouldn't contest in the hypothetical i used with justice ginsburg you could have a copyright in the  copyright 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 but does that mean you can have a copyright in the shirt design that somebody couldn't draw the make the seed oh sure it is is that is that correct or you could you could not 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 lunchbox put it on a hat and no one could copy that that's clearly within the subject matter of their copyright 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  for the pictures that are in their catalogue is that what you're suing 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 are pictures of their uniforms in their catalogue now that you can't stop them from selling their we can't stop them from using their copyright to do anything on a printed page or even to take these designs and like i said put it on a can't you do if we don't agree with you if we agree with them that this is a picture eligible for copyright absent some other disqualification like obviously this or a lack of creativity or whatever else ok assume we agree with them what can they stop you from doing but 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 ok we have a 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 one hundred one 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 uniforms so but if i could just go back and make sure i understand my question about the tuxedo shirt you know i have a copyright in the design of the tuxedo shirt not in a tuxedo correct 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 you're here i have a design a copyright dress and now we're trying to prevent other people from manufacturing that cheerleader dress with that design because that's like manufacturing the tuxedo and what once that was section one thirteen b says is that all of the the copyright law with respect to this kind of issue that was i don't understand why it's not manufacturing the text it's not manufacturing the thing that i have the design and i have a design in seat i have a design of a tuxedo shirt so you can't make a tuxedo shirt i have a design in the cheerleader dress so you can't make the cheerleader dress it has to do with the very careful statutory requirement exist independently what that means is the future 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 number of utilitarian designs so let me just take those off quickly first it changes how the wear is perceived through optical illusion and that some of the things that i've been referring to the slimming lines on the side the waist job clearance point below because if these cheerleaders were wearing wrestling thing with 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 think convey information doesn't make it not a useful i don't think that optical illusions are conveying information 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 to sort people that's different than conveying information like facts and figures  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 one hundred one both pictorial graphic and sculptural works definition and the useful arc 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 i 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  garment like a cheerleader uniform is a useful article now you turn to the stuff for ability test so now we look at the p g yes definition right above the useful article definition and there you are measuring the features against the utilitarian aspect of the article it doesn't say only the intrinsic utilitarian functions its 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 they're 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 bottom to ninety nine am to ninety nine b 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 that there's no dispute about that the last thing on this shape was the same on all of these have different designs but different is same shade i know that maybe this would be a good time to turn to the pictures on pages forty five of the blue briefs 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 page four you have two of the deposits this is two ninety nine on the bottom two ninety nine b 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 seems that stripe that goes across diagonally right there that separates the white collar blot from the red color black 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 teams with a stripe so all of these things are functional so now l different a different result if instead of stitched the design is applied if it's supplement and 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 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 eight fifteen 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 are correct what are 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 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 be to appear on but i think they said that the government's position well i think they agree with us on that point if we're going to get if you look at page twenty two and twenty three of their brief they have our little black dress and then they have this very design here number eight fifteen and they explained that if we're right that this design has functionality  think their copyright stops you from everything else we could not print this on a notebook cover we couldn't put it on a lunch pail we couldn't put it on a hat the only thing it allows us to do is to actually produce the useful article itself and  is not within the subject matter of copyright well i guess that's the question is it really in any way because of the opposite way of reading the statute is that the utilitarian aspects of the article that you're talking about in terms of the  that 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 relates to conveying information and that seems to me a pretty good image to confuse in statute but it seems to me a pretty good political 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 of the 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 this up ability tast 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 uniforms 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 if you know in fact there's been one hundred years of proposed legislation where people have tried to reason why camouflage is such a good example for your side is that camouflage actually we can understand it is happening to terri and function that is different from simply conveying information and that is different from simply making  something appear a certain way and either way it's the utilitarian function that camouflage has is to hide you in the woods yes and so so that function would not be excluded by these things right but the utilitarian function of the fabric only works  the design 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  it that when i tried to identify the designs separately i've ended up with something that is not capable of existing independently of the unit of the utilitarian house specs of  what they ignore is that it has to be independent that means completely separate on both sides right in other utilitarian aspects and so then so then you lose the utility you know that they would say under their task that that here because i can conceptual 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 one chief justice and may 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 one zero one and in the issue 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 and thousands upon thousands of registration decisions for applied art and the 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 the courts and the copyright office are not required to get into the question of how effective the visual aura to stick expression of the copyrighted work is what it will do you do about the camouflaged case we think that camouflage the idea of camouflage certainly can't be copyrighted that under one of the this is a special design that things are curved one where another that nobody else would follow enough if it's a brand new or original camouflage pattern right we think although i don't think you need to agree with me about this in order to agree the in this case i do think that any original camouflage pattern could be copyrighted and then reproduced on backpacks i phone covers you know how can it be can it be reproduced on a military uniform or hundreds garbage i think it i think it could that copyright could extend to that if that if that case if camouflage is not copyrightable in that extent that's for reasons that i think at 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 we know our position is that the graphic design the stripes chevrons and color blocks they are separable from the useful article on which they appear well but the to off the useful article you have but whatever color the fabric is a white dress that you look at somebody in the white dress you don't feel that that's a cheerleader will respectfully mr chief justice you get it you could have a white cheerleading uniform worn by a cheerleader with a team name and team logo on it you know and i think that we've given examples of why that is and from the nine hundred fifty s well really you could all you could have it you can have us if you look at page thirty four of the joint appendix you'll see in starr's own catalog examples of uniforms that have taken and put on other articles that could be put on you know as i said before an i phone cover or on the warm up jackets jackets that are in the reproduced majority and i know you have 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 come for yes those can be copyrighted but because it is the design that makes the dress the cheerleading uniform you can't a form but even even setting that aside if you look at section one thirteen a which sets out what rights the owner of a copyright in a pictorial graphic or sculptural work has those right include the right to make copies of it to embody the the design in or on any kind of article including a useful article and you know what it would 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 that the owner of a copyright in a visual work or a graphic herself or a work has the raw to embody it on usenet or here 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 to design but the question is when the design is what makes that useful article what it is the design of a lunch box doesn't make the lunch box lunch box it's still 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 said that this particular views particular designs are what are what make of cheerleading it well it would just lean a little bit but let me if you understand you are resisting the premises 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 the 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 register's testimony about what the copyright office had been doing for decades explaining to congress in the course of adopting the seventy six act both the register and the house report say that virtually all two dimensional designs applied to useful articles are going to remain copyright l a house report is not the law to be sure we're not we're not saying that it is but we are saying that if you look it's perfectly consistent with our view of what a utilitarian aspect of a useful article is and we also think that you know again you know even if the house report had not said we are intending to codified this court's decision in maser 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 utilitarian we're saying that they don't serve the utilitarian perp that the purposes my friend attributes to them are not utilitarian aspects of the article under the statute they are certainly are utilitarian they cover the body of a you know they provide military member versity the contracts with you know that they have to buy their uniforms for you from you for ninety nine years plus whatever the university that you so you know he's cheerleading uniforms to do they know black and i presume some of these are cheerleading uniform responding to certain teams they buy them and they put their names on them correct sure school certainly put their names on shilling if so why aren't they stuck with you being the or if we do if we design this particular combination of elements and we do own the common and we do know on a copyright in that combination we don't own the idea of an orange and black cheerleader uniform or a black and yellow if you know but the point the question is i think  ecause i have the exact same question start with the 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 one 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 that two hundred  twenty five billion dollars 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 we're 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 killing knockoffs with with copyright well you haven't been able to do that with trademark law you haven't been able to do it with patent designs we're not going to use copyright law said killed the knockoff industry i don't know that that's bad i'm just saying so let me clarify that that at the outset we're not claiming the shape the cut or anything like that about and about these garments look at page sixty of our brief and you will see catalog all the i have left is i have left this is the design year 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 the dress that covers a woman's body now but just not what you want to copyright know that thing absolutely not just is not so you have a different design here then we're not talking about about figure eight we're not there are are design in figure eight if you look at the registration that corresponds to that figure which you will find in the joint appendix at forty six you will see that the registration is for two dimensional artwork so of course it's a to demand it 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 no but it's a two dimensional or work that appears on the surface it is not it's 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 correct what you said is you own the design of the dress you know i mean isn't you don't know we said well we say that we own the design that if that appears on in that case on the dress but can't that can also appear on the warmups it can also appear on the jacket so you don't need any more no wait but 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 in take any dress or suit just about and produce a picture that looks very much like that and then to the companies that use the same dress or style but it's my practical but this is the conceptual 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 and my not allowing copyright for virtually assuming other things  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 you thought wrong 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 from chevron to the or nothing 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 fine i think that's why i asked for 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 of them so yes and so the design on any fabric potentially could be copyrighted could it not the surface if it was if it began as a painting the owner of the copyright in that designs are copyrightable is that correct that's that's what i was told and everybody my friend agreed that the fabric design is caught so it seems to me that the question right there in this case is are you going to treat this kind of design just as you 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 apparel that's meant to  fit onto a human body in a particular way and that seems to be to be the the the distinction he's making and i want you to tell me why that distinction in your view doesn't make a difference it doesn't make a because what he he's identified a number of different suppose it utilitarian aspects and some of which i think actually go to the fabric of the dress and we're not complete 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 particular way and he's saying that you can't copyright those as applies to a cheerleading uniform because they're especially useful they are like and 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 and compass is because any work of visual art conveys a very you know a visual message or you know or an aesthetic impact and to have the why is that our most it's i mean old as i said to the chief justice in the we do think that if you see camouflage is portraying the appearance of a particular of a particular thing you know or or sending a message that you belong in in a particular group that would not be copyright eligible if that were then there would not be a utilitarian aspect if comma fly's is not copyright also it's because it performs something that's different from making you look good in it in an aesthetic way it's because it conceals we know what we think the best answer is what life should that make a difference to me the word utilitarian is the key word in the definition and that's why i think maybe using a one of the fine arts examples you know might help to illustrate this point if you look in the amicus brief of the professor's book of let's go and from are they have in their illustration number one is the fresco painted on the dome of the 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 loyally art but you certainly can get a copyright in of work of fine art that decorates a room or a rug or a useful 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 the copyright protection if the argument is not that it makes the room or whatever look better the argument here is design makes this look like a cheerleader you for which is different distinctive function 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 while 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 wanted to be the merger doctrine not this utilitarian separate military 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 what the owner of a copyright from locking up the ways of expressing a particular idea so that if on the facts they were only a couple ways of looking like a cheerleader that here i mean are we the ones who decide that you wanted to introduce expert testimony what was the expert testimony you wanted the other side wanted introduce expert testimony your honor and the petitioner told this court at page forty of the petition for cert that this is a pure legal question we agree that under the correct analysis it is a pure legal question 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 in are influenced by function or modest or that he said there are a lot of other ways to show that somebody is a cheerleader and you know maybe there are started to try to think of them and you know that's not just that they all look alike it's so maybe that's one area in which you have to say that ninety five percent of the cheerleading squad look like this so maybe there are other ways we're ultimately the question here the question is the hypothetical question of whether this design can and can be identified separately from the articles in which it appears and whether it has an exit it has an existence separate from those  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 element this particular arrangement so of somebody just added a different another stripe well i have and 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 in brand reordered the elements i think they'd have a good argument that you mr chief justice may it 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 sure 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 the military uniform so your honor camouflage has been protected by copyright for decades the copyright offices practices on that reflect the view that copy of 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 even if it's applied to military uniform so as applied to military uniform if someone were asserting a copyright in camouflage in such a manner as to prevent the manufacture of actually manufacturing a uniform that would perform a concealment function and if concealment were as justice kagan was positing consider to be separate from the sorts of expressive functions that are traditionally protected by copyright  yes there might be some infringement defenses that would apply in that context but i think this dispute in this case is really boiling down to is a question of what the utilitarian aspects of the useful article are and i think there are two the petitioners identifying one is conveying the information that someone's a cheerleader identifying someone as a cheerleader and the other is affecting the viewer's perception of the wearer's appearance i'd like to just explain overall what about what about the woman or the man wishes and indeed this is the only reason for wearing clothes they're making the statement about themselves the saying who they are the clothes on the hanger do nothing the clothes on the woman do everything and that is i garment isn't copyrighted what about earlier about what about lemon these test on page seventeen of his brief as i read it as i read it and i thought i'm sure you've read it and and it seemed to it does say that a two dimensional picture of a three dimensional piece of clothing is not intitled to copyright because it is not a design of anything but a utilitarian object the 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 static aspects of the cheerleading uniform and put them in a different way do you agree with lemley statement which i mean it's such a no no festers that there your honor that's why i thought probably you read it and and it's from all over the one is about the act and what it's doing overall the act overall is drawing a distinction between the kinds of as static 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 burke 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 there are 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 this is indistinguishable from putting a sports team logo on a t shirt to identify someone as a washington capitals fan for instance who what do you do with mr bush's 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 pages thirty nine to forty of our brief the merger doctrine the sense of fair doctrine would apply to prevent what would effect of lee be monopolization of that idea so if that were really happening in this case and there are some reasons to think that's not actually happening in the cheerleading realm and we discussed those in our brief if that were happening extent there was some sort of unique two dimensional elements that some casino wanted to put on its uniforms to identify its employees that our work would be copyrightable and just like the cheerleading uniforms in this case i also want to address the argument that w before you get away from one thing very quick as maybe i really agree with you looked at i looked at page twenty two of your brood and figure eight and would seem there when i took the arms away was a picture of the thing that was the picture cut in style and not just a picture of chevron's 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 seven and eight in our brief your honor is that everything you see in figure seven that's also in figure eight is not copyrightable that's the cut and shape of the dress it's the stripes on the coloration in the lines in the design in 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 it's separable what you see is a picture of a dress that goes around woman which does look like you know shape and cut so they have generally chuck to box as they did here that says dimensional artwork and the copyright office understands all they're trying to protect is the surface imagery of the garment and that build 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 or the useful article and i think that approach would be comforted congressional intent and completely in administer bill if you look at page fifty five of the house report you'll see that congress believed that two dimensional designs on fabric  thus copyrightable but that wouldn't be true under the approach petitioners are going under that approach you 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 with that sense what is the problem but on the other hand seems a little bit strange that you don't take a garment designer who wants to 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 dylan through the shape of the article syrian are different 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 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 centrally 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 not copyrighting particular have copyright to copyright the way people present themselves to the world the way that someone expresses 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 were if we don't have definitive 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 over point only and this is where we're not just talking about two dimensional artwork we're talking about two dimensional artwork applied to the fam brick in a way that be a utilitarian function it's not just the truth if your friend concedes that if you want to put a picture of this on a lunch box 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 that serves that utilitarian function that you don't have a copyright where i think our fundamental disagreement is whether this is actually performing utilitarian functions if i could just finish my response and i think one i think one problem with the approach you just articulated is that really divorces section one hundred one and section one thirteen a because you could get a copyright in the illustration and then he would say it's not copyrightable in certain applications not doesn't make much sense thank you thank you counsel mr burch six 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 street 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 they've 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 but that just like a camera mush i mean the colors are just colors arrangement and i would say even as the color of this court in the quality case that was a trademark case you said that black the color black has the ability to make a motor look smaller than it actually is that has a function that makes it ineligible for trademark protection patrol representations they can always be applied in a way that kind of is 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 government for its functionality because just like we were discussing earlier you could take the logo and you can put it on your hat or your socks or your lunch pail or on your mission that you hold up on the phone at the home right right because it doesn't have it doesn't rely at all for the coloring of some weird that could never be copyrighted that 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 the copyright would not extend to the guerrillas hand around you're one of the pictures right that's a much closer case than this one for starters that were walking through the analysis first you look at the identified separately and here when you look at the arrangement of the stripes in the color blocks in the chevrons you see the cheerleader uniform and this is justice prior's point about page seventeen 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 the t shirt in that case was less functional without the design and i think that's a close call but 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 expect next important so i bring this all back to what the chief justice said isn't that the it's the design that makes the article what it is then you can't copyright it and i would say that's almost exactly right they can copyright the design and prevent reproduction of the two dimensional designs on the notebook or the lunchbox but if it's the design that makes the article what it is  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 plates whatever the tightness of the top  not work anywhere anyplace no matter how you move them if we're looking at page five and you've got the waist narrowing the which are not the shape of the dress but the 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 lunch box they don't make the person look narrower they don't even make the lunchbox look narrower but the designs the shape of the designs work just like the shape of the garment itself and that's why this is different than that flo print that we were talking about in the folio case you know in conclusion i want to go back to what justice pryor and justice sotomayor said that if you recognize that there are two dimensional copyright extends to prohibit the manufacture of actual three dimensional cheerleader uniforms then you're giving them one hundred 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 go to somebody who puts  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 the stripes and chevrons and colored 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 swimming a fact the making taller a fact and all the other things that camouflage do so we respectfully request that you not grant a hundred year copyright manaul monopoly and design thank you council cases