The U.S. Supreme Court might have just thrown fashion designers a copyright lifeline.
In its first-ever ruling on apparel copyright, the court said certain artistic elements of apparel can be protected.
The high court found that cheerleading uniform-maker Varsity Brands can attempt to protect two-dimensional design elements — like stripes, chevron patterns and colorblocking allegedly being used by rival Star Athletica. Experts said the broad decision could aid designers looking for legal tools to protect their work.
“My main hope when the court took this case was that it would simplify the copyright scheme for fashion, since lower courts have been all over the board as to what bits and pieces of apparel you could copyright,” said Kimberly Warshawsky, an intellectual property partner with Ballard Spahr. “This ruling simplifies things quite a bit because the court said essentially that if a design can be perceived as a separate work of art, it can potentially qualify as copyrighted material.”
Specifically, the court said in a majority opinion written by Justice Clarence Thomas that a 2-D or 3-D design used on apparel can theoretically hold a copyright as long as it can stand on its own and be perceived as a work of “applied art” in a given “useful article.”
Apparel has long been considered a “useful article” immune to copyright, leaving legally savvy brands to seek design patents and trademarks, which are costly, run for a relatively short term and take longer to get. Copyright protections are inexpensive to pursue and if granted, last for 95 years.
Susan Scafidi, the director of the Fashion Law Institute at Fordham Law School which filed an amicus brief with the high court in support of Varsity, said the ruling is “a clear victory for team copyright” and the fashion industry at large, which has long relied on copyrights for unique fabric and surface designs.
The justices steered clear of saying whether or not they saw the cheerleading uniform patterns at issue as original enough to maintain a copyright, leaving the issue to be litigated at the lower court level.
Thomas stated explicitly that “the only feature of [Varsity Brands’] cheerleading uniform eligible for a copyright is the two-dimensional applied art on the surface of the uniforms” and that the company “has no right to prevent anyone from manufacturing a cheerleading uniform that is identical in shape, cut or dimensions to the uniforms at issue here.”
Christopher Buccafusco, a professor focused on intellectual property at Cardozo Law School in New York, sees such a copyright-friendly opinion as a new foothold for apparel copyright.
“The ruling is about the broadest possible reading of the Copyright Act you could imagine,” Buccafusco said. “It creates an incredibly expansive reading of useful art and design, so while the court says that the cut and design of a garment can’t be copyrighted, nothing else in the ruling seems to support that statement.”
Given the expansiveness of the ruling, Buccafusco noted that the Council of Fashion Designers of America would rightfully “be pretty upset” that Varsity didn’t push the garment copyright side of the case and instead focused on the 2-D elements.
The CFDA saw the ruling as a “reaffirmation of existing law” protecting prints and other surface design elements used in fashion and was pleased copyright protection was not restricted or expanded “in a way that would constrain competition.”
“Because the Supreme Court’s decision appears to be a continuation of existing industry practice, we would expect that the American fashion industry will continue to thrive thanks to the imaginative works created by our designers and the growing interest in their designs,” said Steven Kolb, president and chief executive officer of the CFDA.
In a dissenting opinion, Justice Stephen Breyer expressed pointed concern over the prospect of widening the scope of copyright protection when it comes to “useful objects” such as apparel. He favored a more stringent test in granting copyright protection for artistic elements in general.
“What is there in the world that, viewed through an esthetic lens, cannot be seen as a good, bad or indifferent work of art?” Breyer asked.
He went on to note that the fashion industry has “thrived” by utilizing design patent and trademark protection, but that “protection to the design of a garment would grant the designer protection that Congress refused to provide.”
Lisa Rosaya, an intellectual property partner with Baker McKenzie, sees the ruling as expansive in terms of how it defines applied art, but said it’s also narrow given the reality that the justices are “talking about just cheerleading uniforms.”
And it remains to be seen how the ruling will be applied in practice.
“None of the judges wanted to take ownership and say this chevron design is original and subject to copyright and it’s [understandable because] it comes to an area of who can really define what art is?” Rosaya said. “It is hard because let’s say you go to a modern art museum, you look at something and say, ‘That’s not original,’ but it’s art. So in theory, this is important, but in practice, it will look very different.”
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