Supreme Court’s First Ruling on Fashion Copyright

Broadening Intellectual Property Rights for the Fashion Industry

Fashion Copyright


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[1], 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[2],” 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[3].” 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[4].” 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.


Terri MeyersTerri Meyers is a Partner at the Miami firm of Kluger Kaplan Silverman Katzen & Levine, P.L. and leads the firm’s Intellectual Property department.




Mayda_NahhasMayda 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.




[1] 17 U.S.C. § 101 (2010).

[2] 17 U.S.C. § 101.

[3] Star Athletica, Inc., 2017 WL 1066261, *14.

[4] 17 U.S.C. § 113(a) (2010).

Castellanos v. Next Door Co.: Assuring Reasonable Compensation for Workers’ Compensation Attorneys and their Clients

By James Diamond

In April 2016, the Florida Supreme Court issued an important ruling in Castellanos v. Next Door Co., significantly impacting Florida’s workers’ compensation statute.  The high court struck down the fixed amount of attorneys’ fees that successful workers’ compensation claimants are entitled to under Fla. Stat. § 440.34 on due process grounds, opening the possibility for successful workers’ compensation claimants to obtain increased attorneys’ fees awards.

Prior to the Castellanos decision, Section 440.34(1) strictly limited successful claimants’ recovery of attorneys’ fees based upon the amount of workers’ compensation benefits obtained. Specifically, a judge of compensation claims (“JCC”)—a judge responsible for adjudicating disputes over workers compensation benefits—could only award attorneys’ fees in an amount not exceeding 20% of the first $5,000.00 of the benefits secured, 15% of the next $5,000.00 of benefits, 10% of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5% of the benefits secured after 10 years. Furthermore, Section 440.34(1) created an irrebuttable presumption that precluded consideration of whether the statutory attorneys’ fee award was reasonable.

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Same-Sex Marriages, Same Family Law Issues Apply

Richard I SegalIt is a proud moment to see the Supreme Court of the United States recognize same sex marriage and further equality for all. This was a long time coming and is a day to celebrate. However the celebration and joy for many same sex couples of finally being able to get married should not overshadow the fact that marriage still has very real legal ramifications for all newlywed couples.  For those same sex couples who have been together for a very long time and marriage now is simply a legal recognition for their already long established loving relationship, many of these legal family law principles such as equitable distribution and alimony might be novel concepts to consider and should spark new and open conversations with a spouse before deciding to run to the alter.  Many same sex couples are well established in their careers and are walking into the marriage with love and joy, but also with a lot of assets.

As a family law practitioner I would advise any potential couples, young or old, gay or straight, that a prenuptial agreement is a wonderful tool to lay out from the outset before getting married what each spouse would receive if the marriage unfortunately came to an end.  As I explain to potential clients, my firm would never advise potential business partners to go into a lifelong deal, invest all of their assets, but not document the deal and enter into a clear partnership agreement.  Thinking from a practical standpoint, and unfortunately having to recognize the divorce rate in the United States, there is nothing faux pas about considering entering into a prenuptial agreement.  If the marriage is strong and forever lasting, which we all go into marriage firmly believing, then a prenuptial agreement entered into will always remain simply a document stashed away in a vanilla folder and never have an impact on the relationship.  I fully envision seeing an uptick in business, and am happy to now be able to protect all couples assets before marriage.

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Hobby Lobby Ruling a Potential Slippery Slope

The Supreme Court of the United States (SCOTUS) issued a landmark decision in the Burwell v. Hobby Lobby Inc. case last week, asserting that certain employers with religious objections can deny paying for contraception under the Affordable Care Act.

Michael Landen, a partner at Kluger, Kaplan, Silverman, Katzen & Levine, shares his thoughts with the Daily Business Review on the ruling, and raises important questions about the full implications of the decision.

He argues the decision is a slippery slope, opening the door for “closely-held” businesses to become involved in private medical issues such as fertility, birth control procedures (such as vasectomy or tubal ligation), psychiatric care and blood transfusions. If a private employer’s religious beliefs can dictate the health care its employers receive, all kinds of health care and medical procedures, some possibly life-saving, may be at risk.

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Hobby Lobby Decision Is A Potential Slippery Slope

The Supreme Court’s decision is limited insofar as it only applies to “closely held business.” However, that limitation is deceiving since many large employers qualify as “closely held” based upon their ownership structure, such a Hobby Lobby. The decision is a potential slippery slope as it now opens the door to allowing employers to become involved in private medical issues such as fertility, birth control procedures (such as vasectomy or tubal ligation), psychiatric care, and blood transfusions. If a private employer’s religious beliefs can dictate the healthcare its employees receive, all kinds of care and procedures, some possibly life-saving, may be implicated. Also, noticeably absent from the Hobby Lobby opinion is any meaningful discussion about other uses for birth control pills beyond preventing conception. If the pills are medically necessary for another use, can an employer refuse to cover them? How deep can an employer delve into its employees’ personal medical history to glean this information? The Supreme Court has also created a slippery slope for women who have children out of wedlock. If this is inconsistent with an employer’s religious beliefs, can the employer refuse to pay for prenatal care, or refuse to hire that person at all? What about care for the newborn baby? The holding in Hobby Lobby could potentially impact not just the Affordable Care Act, but other federal laws such as the Pregnancy Discrimination Act. The full implications and breadth of the Supreme Court’s holding has yet to be explored. All of these issues and many others will surely be in debate as the impact of the highest court’s ruling is felt on courts nationwide. For these reasons, employers should consult with an employment attorney to better understand the impact of this decision on their businesses.


Michael T. Landen is a partner with Miami-based Kluger, Kaplan, Silverman, Katzen & Levine. Landen focuses his practice on commercial litigation and labor and employment law.