On October 31, 2016, the Supreme Court will hear oral argument in Star Athletica v. Varsity Brands on whether the stripes and chevrons found in Varsity Brands’ cheerleader uniforms are sufficiently “separable” from the overall uniform to be copyrightable.
Because copyright protection extends only to “expressive” content and does not reach functional ideas or objects, a “useful article,” such as a hat, a dress, or a cheerleader uniform cannot be copyrighted. 17 U.S.C. § 101. A useful article’s component features or elements likewise cannot be copyrighted unless they are capable of being “identified separately from, and . . . existing independently of, the utilitarian aspects of the article.” Id.
But at what point does a feature of a useful article become conceptually separable from the article, and therefore, protectable? Can you copyright the pattern printed on an article of clothing? Can you copyright a uniform’s design? Are those components sufficiently expressive and independent from their host useful article to be entitled to copyright protection?
Varsity Brands contends that such components are conceptually separable if they can exist in a tangible medium other than the uniform. Varsity Brands extends this reasoning to argue that copyright law should categorically protect all two-dimensional designs.
Star Athletica, the alleged infringer, contends that Varsity Brands is seeking precisely the kind of “design” protection that Congress has repeatedly refused to create (although such rights exist in Europe and in other jurisdictions). Instead, Star Athletica argues that the cheerleader uniforms’ principal design features – stars, stripes, chevrons, and zig zags – are essential to the article’s usefulness as a cheerleader uniform because they identify the wearer as a cheerleader. Therefore, the design features cannot be regarded as conceptually distinct from the uniform, and are not entitled to copyright protection.
Notably, Star Athletica further argues that copyright protection should categorically exclude all garments. While it is true that the graphic and design features of most articles of clothing are dictated by utilitarian concerns, and are therefore not conceptually separable from the article of clothing itself, this is not always the case. Professors Jeannie Suk Gerson and C. Scott Hemphill noted in their amicus brief in support of Varsity Brands that the Supreme Court has already recognized that some dresses have copyrightable designs or design features. See Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1360 (2013) (examples of imported goods protected by copyright include “a video game made in Japan, a film made in Germany, or a dress (with a design copyright) made in China[.]”) (emphasis added).
If the Court sides with Star Athletica, fashion designers could be left defenseless against even the most egregious copycats. Regardless of the outcome, this decision will have far-reaching implications for the fashion industry, specifically, and for copyright law, generally.
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