UCLA School of Law professor Kal Raustiala has been cited by Supreme Court Justice Stephen Breyer in a dissenting opinion in a copyright dispute. The dissent came today in Star Athletica, L.L.C. v. Varsity Brands, Inc., which concerns the applicability of copyright protections to various designs that appear on cheerleading uniforms.

In a 6-2 decision, the court held that the designs at issue were protected and established a test to determine whether artistic elements that are incorporated into industrial designs are eligible for copyright protection. Justice Clarence Thomas wrote the opinion of the court. Justice Ruth Bader Ginsburg filed a concurring opinion, and Justice Anthony Kennedy joined in Breyer’s dissent.

In a wide-ranging analysis of related doctrine, Breyer wrote that Congress has left copyright protection “largely unavailable for dress designs.” He cited an article that Raustiala wrote with Christopher Jon Sprigman, now of NYU School of Law, titled “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design.” The article — which argues that weak copyright protection in the fashion industry enables the kind of design imitation that encourages the birth of new styles — was published in the Virginia Law Review in 2006. In 2012, Raustiala and Sprigman incorporated the research into a book, "The Knockoff Economy: How Imitation Sparks Innovation" (Oxford University Press).

As is custom in copyright cases, Breyer’s dissent and the court’s other opinions rely heavily on the nation’s leading copyright treatise, "Nimmer on Copyright," by Melville Nimmer, who was a professor at UCLA Law from 1962 until his death in 1985, and his son David Nimmer, who is currently an adjunct professor at UCLA Law.