Fashion Law Series – Part V: Fashion Designs and Copyrights?

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The cheers on both sides are deafening now that copyright protection for fashion designs has reached the United States Supreme Court. The case of Star Athletica LLC v. Varsity Brands Inc. concerns allegations that cheerleading and dance-team uniforms violate certain copyrighted designs. The copyrighted designs were protected as “two-dimensional artwork” and included graphical elements including stripes, chevrons, zigzags, and colorblocks. The district court found in favor of the accused infringer, ruling that the designs had a utilitarian function – as uniforms for cheerleading. In other words, to be a cheerleading uniform, the clothing must have certain graphical features so that the wearer is recognized as a cheerleader, and the graphical elements were deemed not separable from the utilitarian function.

The appeals court reversed the district court decision using a multi-part test: (1) is the design a pictorial, graphic, or sculptural work?; (2) if the answer to (1) is yes, is it a design of a useful article?; (3) what are the utilitarian aspects of the useful article; (4) can the viewer of the design identify “pictorial, graphic, or sculptural features” separately from the utilitarian aspects of the useful article?; and (5) can those features exist independently of the utilitarian aspects of the useful article? Using this test, the appeals court defined the function of the cheerleading uniforms differently from the district court and found that not all cheerleading uniforms must look alike to be cheerleading uniforms. The arrangement of the graphical elements can exist independently of the cheerleading uniform, so the elements are more like “fabric designs” imprinted on fabric than “dress designs.”

It has typically been difficult to obtain copyright protection for fashion designs because they are considered to be functional and the “separability” test permits copyright protection only if the design incorporates graphic, pictorial, or sculptural features that are separable from the utilitarian aspects of the design. Separability can be physical or conceptual, and it has been hard for the courts to define a test for conceptual separation. Some courts have denied copyright protection for a design that mainly served as a uniform. Other courts have denied copyright protection for ornate features of dresses because the clothing served to cover the body. On the other hand, courts have confirmed copyright protection for a belt buckle because the design did not enhance the belt’s ability to hold up pants and for an ornate swimsuit design because it was more like a museum-type soft sculpture than solely utilitarian.

So now the Supreme Court has an opportunity to decide this cheer battle over copyright protection for fashion designs, specifically whether two-dimensional graphic designs are protectable as “pictorial, graphic, and sculptural works” under the copyright law. And the decision’s applicability could extend beyond the fashion industry. In fact, the 3-D printing industry has already expressed its opinions on how to separate creative copyrightable designs from utilitarian objects not subject to copyright. In the meantime, other industries may jump on the cheer pyramids being formed by the copyright holder and the accused infringer, but it is still unclear which side will hit the pyramid and which side will topple before the dismount.

To learn more on becoming a fashion designer, check out this article by Sun Tat Label.

For more information on this topic, please visit our copyright service pages, which are part of our Software & Copyrights services.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the copyright law firm and its copyright attorneys may be found at www.klemchuk.com.

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.

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