Copyright (and Fashion) Advice from the US Supreme Court

March 27, 2017

By Courtney A. H. Thompson

The clothes on the hanger do nothing. The clothes on the woman do everything. And that is, I think, what fashion is about.” - Justice Stephen Breyer 

On March 22, 2017, the Supreme Court handed down its decision in the Star Athletica v. Varsity Brands case. The dispute turned on the issue of whether the design of cheerleading uniforms, including chevrons and stripes, can be protected under copyright law. In essence, this case dealt with the complicated middle ground of copyright protection for the aesthetic features of a “design for a useful article.”

The Supreme Court held that elements of clothing design can be protected under copyright law. “The Copyright Act of 1976 makes ‘pictorial, graphic, or sculptural features’ of the ‘design of a useful article’ eligible for copyright protection as artistic works if those features ‘can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.’ ” (emphasis added).

While the Supreme Court set forth this succinct two-prong test, there remains gray area in terms of its application. We will not know how much protection the decision actually extends to designers or the practical effects of the decision on the multi-billion dollar fashion industry until lower courts apply the rule to other disputes.

One thing that is clear is that certain aspects of clothing design can be eligible for copyright protection. Thus, while this ruling is not carte blanche protection from copiers and counterfeiters, it provides grounds for designers to defend themselves against knockoffs. As a result, it is expected that designers—big and small—will rely on copyright law more often to stop infringers.

If you are facing a counterfeit issue, or another intellectual property matter, the attorneys at Fredrikson & Byron can help you understand your rights and advocate for your interests.