GO COPYRIGHT!
Today, the Supreme Court issued a highly anticipated ruling in Star Athletica v. Varsity Brands, the only apparel copyright case the high court has ever considered. At issue in the case was whether the design elements on cheerleading uniforms, like stripes and chevron patterns, could be copyrighted, even though such decorative patterns have been long considered to be incapable of copyright protection because they were inseparable from the underlying garment. Law360 (sub. req.) provides additional background on the case:
Apparel is usually outside the scope of the Copyright Act, which bars protection for “useful items,” but a lower court ruled in 2015 that decorative elements on Varsity’s uniforms were “conceptually separable” enough from the underlying garment to be protected.
The question before the justices was how courts should decide when such “separability” exists, an issue that has split lower courts. Fashion companies pushed for a looser approach that would allow them to protect more apparel with copyrights; consumer advocates called for a tighter approach, meaning less protection and more competition.
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During oral arguments, Justice Sonia Sotomayor acknowledged that the ruling in this case could transform the fashion industry at large — and it just might. In a 6-2 opinion penned by Justice Clarence Thomas, the high court ruled that certain apparel design elements can be protected by copyright law. In its decision, the Court laid out a two-part test to determine when such design elements are eligible for copyright protection:
A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.
This ruling could have a significant impact on the fashion world because it hands designers another means to protect their designs, and perhaps to stave off counterfeits.
Three cheers for fashion law! How do you think fashion industry will be changed by this opinion? Please get in touch with us via email or text (646) 820-8477.
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Opinion: Star Athletica v. Varsity Brand [Supreme Court of the United States]
High Court Says Cheerleader Uniform Copyrightable [Law360 (sub. req.)]
Staci Zaretsky is an editor at Above the Law. She’d love to hear from you, so feel free to email her with any tips, questions, or comments. You can follow her on Twitter or connect with her on LinkedIn.