Broadening Intellectual Property Rights for the Fashion Industry
In a first ever fashion copyright decision, the U.S. Supreme Court analyzed whether design elements on a cheerleading uniform could be copyright protected.
At issue were two competitor manufacturers of cheerleading uniforms, Star Athletica, LLC (“Star Athletica”) and Varsity Brands, Inc., Varsity Spirit Corporation and Varsity Fashions & Supplies, Inc. (collectively “Varsity”).
Varsity had successfully acquired approximately 200 copyright registrations for two and three dimensional designs that appear on its cheerleading uniforms. Varsity sued Star Athletica for infringing five of Varsity’s copyright registered designs. In 2014, the District Court held that fashion related patterns for apparel were non-copyrightable if the work of art was not identified separately from its garment. It reasoned that the cheerleading uniform’s designs served a useful function of identifying a cheerleading uniform as such.
Under the Copyright Act of 1976, uniforms and other clothing are generally considered useful articles and therefore such items cannot be copyright protected. The fashion industry has customarily relied on other areas of intellectual property law such as trademark, trade dress or design patents to protect their fashion designs and brand. This is because although some elements of fashion can be protected by copyright law such as drawings, photographs, editorial content and software embedded in wearable tech, before this ruling, fashion designs were not copyright protectable.
The Supreme Court, in a majority 6-2 decision, reversed the District Court’s decision and ruled in favor of Varsity Brand, finding that individual design elements incorporated into such useful articles are eligible for copyright protection.
The Sixth Circuit’s decision held that the designs were “separately identifiable” because a blank cheerleading uniform can appear side-by-side a designed cheerleading uniform and both would still be identified as a cheerleading uniform. It further reasoned that the designs could stand-alone because the designs could be incorporated onto other tangible mediums.
This decision marks an important milestone for the fashion industry and will no doubt spawn further litigation as designers press newfound copyright protection and copycats wonder what is safe. A designer wishing to obtain protection for a design must still prove ownership of an original “pictorial, graphic, or sculptural work which include two-dimensional and three-dimensional works of fine, graphic and applied art,” and obtain a registration from the U.S. Copyright Office. Although registration is not required to prove ownership of an original work of art, registration is a requirement in order to maintain a copyright infringement action in federal court.
Finally, Justice Ginsburg found the analysis of separability of the design from the useful article unnecessary because the designs at issue are not designs of useful articles, rather, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles.” Given that the design is copyrightable, Justice Ginsburg points out that the right “includes the right to reproduce the work in or on any kind of article, whether useful or otherwise.” This common-sense approach may send a clear message to the U.S. Copyright Office as they review the inevitable influx of copyright registrations which will follow this opinion.
Mayda Nahhas is a law clerk at Kluger Kaplan Silverman Katzen & Levine, P.L., a second-year law student at NSU Shephard Broad College of Law and Founding President of NSU Fashion Law.
 17 U.S.C. § 101 (2010).
 17 U.S.C. § 101.
 Star Athletica, Inc., 2017 WL 1066261, *14.
 17 U.S.C. § 113(a) (2010).