Can you copyright your fashions? In general, clothing designs: i.e., the cut and design of articles of clothing, are not protected by copyright law because the statute expressly excludes protection for “useful articles.” One of the murkiest issues in copyright law is how to determine what transforms a “useful article” otherwise not protected by copyright into something creative that is worthy of copyright protection. The United States Supreme Court will wade into the issue next term in Star Athletica, LLC v. Varsity Brands, Inc. 2016-05-18_varsity-sports

Varsity Brands is the world’s largest manufacturer and distributor of cheerleading uniforms. When Star Athletica entered the market with its first catalog of cheerleading uniforms, Varsity sued claiming that Star’s use of chevrons and stripes on its uniforms infringed on Varsity’s copyrights. The district court in Tennessee granted summary judgment in favor of defendant Star, finding that the use of stripes and chevrons on cheerleading uniforms was not conceptually separable from the useful purpose of the uniform. In other words, a cheerleading uniform is not subject to copyright protection because the patterns on the uniform are part of what makes it identifiable as a cheerleading uniform.

The Sixth Circuit disagreed, finding that the stripes and chevrons could be viewed as separate and copyrightable. Star sought and received a grant of certiorari from the U.S. Supreme Court. The various appellate courts have struggled mightily with determining when something that is otherwise a “useful article” has elements that may be copyrightable, creating a series of tests and standards that are often confusing, inconsistently applied, and somewhat contradictory.

Join Kandis Koustenis and Jennifer Atkins as they discuss the history of copyright in the fashion industry and the issues raised by the case, including the interplay between copyright and design patent protection.

Photo credit: SD Dirk