Copyright Law is so Fashionable

On June 22, 2016, in Copyrights, by Brian A. Hall

You Decide: Will the Supreme Court of the United States decide that stripes, chevrons, zigzags, and color blocks in cheerleader uniforms are subject to copyright protection?  If so, more robust copyright protection may come to fruition for fashion designers after the Sixth Circuit’s decision in Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 470 (6th Cir. 2015). Most Circuit Courts agree that the “Copyright Act protects the ‘pictorial, graphic, or sculptural features’ of a design of a useful article even if those features cannot be removed physically from the useful article, as long as they are conceptually separable from the utilitarian aspects of the article.” Varsity Brands, 799 F.3d at 483. This means that a useful article, such a as a t-shirt, cannot be copyrighted, but the design on a t-shirt may be copyrighted if it is “conceptually separable” from the utilitarian aspect of the t-shirt (i.e. as clothing meant to cover upper bodies) of the shirt. However, courts have “struggled mightily to formulate a test” for this legal theory. Id. at 484.

A solution to the struggle may soon be revealed as the Supreme Court granted certiorari to address what the appropriate test is to determine when a feature of a useful article is protectable under the Copyright Act. See Star Athletica, LLC v. Varsity Brands, Inc., 136 S. Ct. 1823 (2016).

The Supreme Court’s most fashionable case centers on cheerleading uniforms. Varsity is a manufacturer of cheerleading uniforms, having “registered copyrights for multiple graphic designs” that include “stripes, chevrons, zigzags, and color blocks. . . .” Varsity Brands, 799 F.3d at470-71. Varsity sued Star for copyright infringement, alleging that Star distributed cheerleading uniforms substantially similar to Varsity’s copyrighted designs. Id. at 474. After the Western District of Tennessee denied Varsity’s copyright claim, holding that “a cheerleading uniform is not a cheerleading uniform without” designs, Varsity sought appeal to the Sixth Circuit.

In Varsity Brands, the Sixth Circuit acknowledged that courts have taken at least nine different approaches to conceptual separability. See Id. at 484. Overall, the Sixth Circuit held that Varsity’s designs are “capable of existing independently” of the cheerleading uniform because “the arrangements of stripes, chevrons, color blocks, and zigzags are ‘wholly unnecessary to the performance of’ the garment’s [utilitarian aspect] to cover the body, permit free movement, and wick moisture.” Id. at 492. The Court noted that a “plain white [cheerleading uniform] still cover[s] the body and permit[s] the wearer to cheer, jump kick, and flip” and the “top and skirt are still easily identifiable as cheerleading uniforms” without the design. Id. at 491. Thus, Varsity’s graphic designs were copyrightable. Id. at 492.

Applied to other garments, the SCOTUS affirmation of Sixth Circuit’s logic could largely expand the protection of copyright for fashion designers and prevent “knock-offs” from escaping liability. However, whether SCOTUS will affirm the Sixth Circuit’s holding is still up for speculation, especially considering the diverse approaches that courts have taken on the issue. SCOTUS has broadened intellectual property rights recently with decisions such as Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 14-1513, 2016 WL 3221515, at *4 (U.S. June 13, 2016) in which the Court made it easier for patent holders to recover treble damages when pursuing patent infringement. If SCOTUS continues down the path of IP right expansion, then affirming the Sixth Circuit’s ruling in Star Athletica, LLC v. Varsity Brands, Inc. may be its next opportunity. Until then, those in both the fashion and legal industries will be watching, and the case will get more press and attention, as shown here.

Blog post contributed with the help of Traverse Legal, PLC Associate Attorney, Mallory Donick.


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