in favor of varsity the key issue on appeal is the separ ability of two dimensional designs appearing on the surface appeared in uniforms as a roadmap for my discussion i ask the court to consider four thinks number one what this case is and what it is not about number two how the district court failed to properly apply the presumption  is contrary to this court's ponding precedent fourthly have a record evidence confirms the separate will of the of the designs with and without considering expert testimony bar city does not claim copyright of the will be any clothing his clothes whether it be uniforms jackets or any other three dimensional items for that matter rather what it claim protection for is the two dimensional or appearing on the uniform within the boundaries of the outer perimeter of the uniform does it matter whether the design is so on to the blank cheerleader uniform or printed on it in other words do you have a stronger case if it's just printed on it here to persuade the court to found here's a let me ask you gets sort of a broader question that just as is troubling me it seems to me that if copyright law says what you say it does that there would be hundreds if not thousands of these cases that designers who have attach a lot of value to their designs of pants golf shirts and whatever it is that there would be all kinds of claims that their copyright in that article of clothing had been had been copied or violated by somebody else so what sort of strikes me and this is what i'd like you to to address is that it almost tells me that there seems like there are so few cases here that the law really couldn't be what you say it is well your honor i submit that but those designers of dresses and pants and other such items would be climbing would be protection for the three appears on the three dimensional object whether it's a cheerleading uniform or a band uniform or golf sure anything else why doesn't this come up so a lot don't i can't say one does not come up but i will submit that if it is protect the ball t v or even if it's placed on a useful article such as a uniform or a jacket then it can be protect the ball on does not come up i do not know is argument i'm not suggesting you're creating the theory but you're applying it to something that it just intrinsically doesn't apply very well to when you're talking about articles of clothing well i think part of the problem here is that there just seems to be the case  i don't think it is ever very clearly articulated in the cases what it is specifically that the plaintiff is seeking to protect in thinking about clothing so there's this line of clothing lily pulitzer which has very distinctive designs and colors have they sought copyright you know are do they have copyright protection for their designs or any other they're in or they're all these beautiful designs that various artists have done that have then been incorporated in clothing are there any examples where there are these copyrights existing in the copyright office i don't know whether they're copyright registrations for those or not but court knows the copyright exists separate and apart from the actual registration it's subsist from the placement of the art in the tangible medium of expression so there correct but basically your argument is you can take the object and simply say well it's just it's just covering the body so anything you put on it then to make it distinctive is is but that just doesn't seem like that could be the law on obviously not anything only to the only other one is protect the ball two dimensional art could be why isn't anything you put on a three dimensional object why can't anything you put on a three dimensional object be reduced to a two dimensional drawing or photograph well a submitted a can but that to not affect its copyright of the little one thing that confused me about the district court's opinion was that he was talking about as i understand it the function of a cheerleading uniform included the no one asked the question whether the pictorial work incorporates pictorial features that can be identified separately from in or capable existing independently of the utilitarian aspects of the article if you define the utilitarian aspects of the article as including identifying the cheerleading team then don't you lose no other not your own and that's not for the that's where the of statutory definition of a useful or and that is an article having an intrinsic utilitarian function that is not merely to portray the appearance of or or to convey information and in doing so rejected the invitation to expand this you to intrinsic utilitarian function of an article to encompass aesthetic and informative functions  in this case the court determined that toy airplanes are not useful articles and in doing so rejected the district court reasoning that the toy or planes possess utilitarian and functional characteristics thereby rendering useful for the reason according to the district court that they quote permitted the child to dream and to let his or her imagination so in other words this appeal to the imagination is the vocative effect did not the court room constitute an intrinsic utilitarian function that would render this non useful toy useful we know that the we know that the top on the bottom  utilitarian they cover people's body that's correct so the question is when you when you dress it up with something is it is it does it lose its entire character of utilitarian or is it utility plus something that you can separate away from it so  does it matter if we look at this in terms of it being a cheerleading outfit or a cheerleading outfit that had done a pfizer particular team is there a different well there is a difference and should be incorporated into an opera cover or tote bags things of that sort the intended use should not affect should not affect the protect ability of the war but hear what the team identity function is saying is that this communicating of information this is a den of the members as well longing to a team or this evoking something sort of or being a cheerleader or being a cheer cheerily revoking the concept of cheerleader  y toy says that that is not a utilitarian consideration that may be taken into account in for that reason here that evocative or evoking function of the concept of cheerleading does not render this these two the designs only uniforms utilitarian and one function the court to really consider  intensely the ruling india tours because of think it supports precisely what i'm saying is that this this circuit we submit has not adopted whatever knowing fighter you want to use has are in with the state of the law in in this orchid samit that i just have one question for clarification do i understand correctly that some of your customers in effect or maybe all of whatnot that they produce everything and you buy it just what it is that your customers can have some input can't thank you i can't but but there too i think the question but there they are creating artistic expression when they ask for what they will what you really get into is if they do that and you make it who owns the creative artistic expression well in these you're only claiming copyright on five designs in this case your  or yes and you're telling us that you your company you're the lawyer but your company designed these five as opposed to customers designing them and there being a problem that is correct we don't we don't think there's an issue there in fact it has over two hundred other hundreds of others to such designs two hundred of which are or are register in your company that that is great and i hope the court doesn't lose sight of the fact that these designs are in top of the presumption created what that by the granting of the copyright certificates my copyright office it's useful articles such as garments are not eligible for copyright protection and i think judgment goes rate right to the point that you're making with with mr garrison that that's why you don't see these cases in fact but they did get registered that is true you're really nobody else just tries to register that they're not as smart as our city well that that they may not be as resourceful or as maybe as dimensional depictions of the uniforms and or the designs of the uniforms and that's the problem that we've got here is there in and judge cleveland identified what does that mean if they registered the two dimensional design you can't put that two dimensional design for example in your catalog because it's still two dimensional if if in fact it's a valid copyright yes you are that would be the case but that's not what they've  violated their registry copyright by manufacturing uniforms that looked like what's depicted in their two dimensional artwork if if this sublimation method as i understand material and they were only manufactured apparently for this lawsuit because we asked for those in discovery and they weren't producer was one in the box of stuff that's correct it was produced because of the this lawsuit and it and there and there  wouldn't that be protected copyrightable why not for the very reason that judge cleveland said in his opinion your honor which is which is that you you still have the identity function that is present regardless of whether or not this is on the surface or if it's a constructed cut and so uniform is the identity function something us copyright office practices defining what is a useful article and item or object is considered a useful article if it performs any inherent or intrinsic utilitarian function other than to that because they give the guidance for where this case and its what judge cleveland followed but the if you in response to your question they addressed that in the giovani case at the very end of the opinion it because that issue came up and that question was made and the state and the statutes is in the definition of a useful article if it's not merely to portray it or to convey information if if that were to apply in this instance then it would completely overwhelm the definition and it would take away the other part of this statute which is what judge cleveland focused on which is that you have to  separate the usefulness from whatever part of it that isn't useful and that's what this court has told him he's supposed to do filter out those things that are protectable from those that are not and why is it what's protect and judge cleveland says that i'm a to give me just a second to find because he says it better than i c the cheerleading uniform loses its utilitarian function as a cheerleading uniform when it lacks all those on it is merely a blank canvas and examination i'm sorry are i was just going to say is he right about that i mean isn't that the essence of the debate here i think that is your honor and that's what it makes it an academic discussion and it's a more interesting discussion but it is not one that judge  about or that we lose on i would submit to the court that again it's an academic discussion that is interesting but it has really very little application to what happened in this case because this isn't what moore city makes they don't make the sublimated uniforms in except when responding to this lawsuit and ninety eight percent of what they make they say is the cut and so uniforms which are clearly remember if you put a lot of braid on this it's going to be tighter and fit differently and that's all about function your honor in fact their own camera logs the catalogs that are developed by their i'm sumi not their legal department but perm presumably their marketing talks about how they have it's the perfect blend of the phone and the merger of form and function and that's what that's the whole problem that they have your honour's is that say they they are they're claiming under the law a fairly narrow protection yet what they are really wanting is a much broader protection that would be only available and under the more rigid and demanding standard of the patent and that and that's what judge batchelder mention in the winfield case so thinking about a somewhat hypothetical there is this artist mondrian who has color blocks and in the sense that's what's involved in these two leaders uniforms so mondrian i would think could have a copyright on his two dimensional painting of a certain arrangement of color box you're saying that if addresses me with a mondrian print where the color blocks are so together that that's your easier case your best case in that you would be able to do that even copying the mondrian place well it to engage in that academic discussion i actually believe there is some law on that specific design but remember what we're talking about is the law well i just i mean i know that there's a there was a case involving that but i don't know why did you don't know  now because it was a it was a clothing case and here what we're talking about are cheerleading uniforms where for a mondrian gala it really doesn't matter i believe that you'd be able to dance and jump and do all the athletic things that you have to do as a cheerleader and that's what is important for those the the non functionality in terms of identity  and as a uniform you don't think you could do all the cheerleading stuff in the blank design that was in the box i was assuming you can your honor but it doesn't tell you that you're a member of a cheerleading and that's the distinction that this is that this is its entire reason for existing is what it is it's the intrinsic nature of it and it's not simply to convey information  merely to convey information so that's why i would not be subject to that exception but that is true i think that is the toughest part for varsity to explain  and therefore they don't they we invited them in our our filing to say deal with the identity function of your of your cheerleading uniforms and that the best they can do is refer to that narrow exception that really has no application here that the taxidermy cases really address that kind of a shoe because you're talking about the and animals face that that is and mondrian clearly have value separate from its union with the garment of any kind i assume so but i'm not sure i follow word you're going judge what well it clearly operates independently can operate independently of the uniform right that that's a good point that in that's what the statute says if you can of being utilitarian then then it's protected and that's what judge cleveland did is he said ok i'm supposed to do that that's what the statute tells me to do and i take away the stripes in the  and the the these and those things which the designer says those are the basic elements of a cheerleading form if you take those away you don't have a chilling uniform anymore you have a blank silhouette can't separate that to the extent that that's protect the ball but then you come back to what judge mckeague asked about earlier is why aren't we why don't you see a lot of these cases well the whole concept of conceptual su has painted a painting and has gotten a copyright on it and in the hype of a dress designer says who i love mondrian's work i'm going to make my dress with a mondrian print and so mondrian is upset about that and wants to sue and he says my art is separable because it has a value separate from the utilitarian aspect of the dress right is that in my getting that right well it yes except that of course that's not what we're talking about when we're talking about cheerleading uniforms and what we're then coming closer to is joe di giovanni case where the second circuit says well but you know what clothing doesn't serve just the function of covering the body it's covering the body in an attractive way and in that particular instance it was for a special occasion for prom and this you're getting closer are you getting are you getting farther out on the scale of where it is you're getting away from the function of just covering the body and the function of covering it in an attractive way but in our case we're talking about covering it in a way that shows that you're cheerleader but what about the fact that these designs are used on other articles of clothing as the warm ups it would that change doesn't change it i would submit no because again if you take away you take away the basic elements of a cheerleading uniform which is what they're in the business of selling they the designer has said what the basic elements are if you take those away again it's blank there's nothing there you know what i'm saying is they have they have gotten a copyright on this two dimensional design and they're alleging that hypothetically at least they're alleging that because you can put this design on many different things in addition to cheerleading uniforms that there is a separate ability aspect there that might be a different case if that's what they were alleging we did but they're alleging we've done it by making cheerleading you've only done it i'm sure leading uniforms and the fact that so so the examples of the warm up suits were their own products not your products as i understand it as i as eva ledge did and that's and that's the best i can answer right there is at this juncture but what people if if hypothetically other people could put the two dimensional design that they have copyrighted on you know a coffee mug where everybody puts all sorts of designs on that wouldn't that show that the design had value separate from the cheerleading  for well it would what what would it would show is that you have a different case and that the answer partly that you're taking this cheerleading design on the uniform and you're just putting it on another article of cheerleading clothing does that answer the question i mean if you could take this chilling new design and put it on something that people are then going to wear to work that might be a different case exactly but why couldn't you do that make it into way are we going to really have problems when the next person wants to make a dress well we're asked to do what judge cleveland was asked to do and what he did was that is address what their actual allegations were and the allegations aren't that we're putting anything on a mug or that we're putting on anything else and we're manufacturing cheerleading uniforms and that crystallizes what the case is all about was you could take the design on the prom dress and you could make it into a cocktail so the question is would you come up with a different answer if somebody question well it hasn't there are many variables you know honor but but again i think that brings us that brings you to the galley on a case which talks about the clothing being one of the stand test being whether something is marketable and for the purpose that it helps define whether it's separable and that's what judge cleveland's that you can't separate these things the statute tells me i have to look the issue it's what do those it's ability to make those subcommittee uniforms incorporating the same designs that are on the cut and so you forms what is the importance of that it goes to of the of the two d or in question and it does seem to me arguably important because there are cases apparently that says you can get a copyright on fabric and so if somebody uses that fabric to make any number of different items that could violate a copyright on it even though it started out two dimensional it's then the fabric is placed in a three dimensional object but you don't i don't read you even really claiming that what you produce what  you are producing here is a cheerleading fabric that then is turned into a dress you don't say you do that do you well we know we characterized what we do as creating u niforms that apply our two dimensional or fabric design is two dimensional or the the got that the but that doesn't answer the question you're not really claiming fabric copyright here are you to  registration for fabric design your own investment is the cheerleading design something on a piece of fabric that you can buy this fabric and then you can make different things it that could be done or a city is not in the business of doing it or city could easily create rolls of fabric that would be fabric design in quotes that could be sold but it has chosen not to do that that's just how it's held in that business because that or even work if if the fabric has all these different stripes and all this other stuff on it it's got to be different sizes to fit different size cheerleader's get this just not like one fabric size fits all you just turn it into a chilly form well there may be some production issues there your honor that you think i'm not aware of one where the other but to your point these things could be produced in quantities of r of some undertaking done only for the purpose of this lawsuit and that that fact is established in the brahman average our judgment kicks question when you sublimate do you print different applied to paper and then the week is heated and then there's a gaseous transfer when that heated piece of paper different sizes the the question and it gets back we talk about paintings and what not and then and that may not be the best example but the do your designs have any value unless they're put on something yes they do your honor and how come wow what would you sell the most reality obviously could sell the painting but what would you sell if you didn't put it on something well  applying them to the surface of something just like the surface of a knot but we're doing the same thing here we're applying these to the surface of the uniform from which they can be and this is important can be conceptual do we look to the question of whether you've ever done that or simply whether you could do that your honor it's a question of whether we could do that is that a curiosity have you ever sold these cheerleading designs for something other than a cheerleading uniform in jackets and a simple google search which would lead the court to just scores of uses of cheerleading done designs just like these in question here tote bags on i phone covers and so they can clearly  they can clearly be marketed on other items that are not cheerleading it was it sort of like any sports team has like the cavaliers or the indians have their you can't copy somebody is loco exactly because they probably got that trademark to wear that's correct you can't but some of these species of intellectual property can be  trademarks serving the source of in a bind function and they can be copyrighted here we don't claim that the copyright in designs functions trademarks we're not making that claim here and you just use the word source identifiable is that what the district judge in your opponents are basically saying is being done here that the particular design  particular team's cheerleading team's uniform identifies a source in a sense data files them as a particular cheerleading team is that suggestive that maybe trademark law is involved or should be involved well the with with the trademark the question would be whether or not the which we're not which we're not arguing by the right but if we were talking try and mark the question would be can this design which appears on the surface of the uniform as it through use in sales and consumer acceptance reach the point in which it has come to signify the producer of that as the source of that has acquired distinct i you will has acquired a secondary meaning but we're not claiming that we're claiming we are claiming what they are claiming we are not they are claiming that our copyrighted design performing team identity function and for that reason they are utilitarian functional and hence non separable from from their of the uniforms on which they appear but again judge brown made it very clear that the fact that the two deeds that they design that the copyrighted material would evoke in the viewer concept cheerleading concept of cheerleading uniform just that you belong to a certain team that's just not part of the in watch and further your bread i do thank you so thank you very much thank you both for your argument the case will be submitted with the protocol the next case