The U.S. Supreme Court dramatically simplified and expanded the world of fashion and copyrights today, ruling that the chevron striping of a cheerleading uniform (and any other design on clothing, furniture, or other "useful items") can be afforded copyright protection under Section 101 of the Copyright Act.

In Varsity Brands, Inc. v. Star Athletica, LLC, the Court held 6-2 that design features can be afforded copyright protection under Section 101 if they can be perceived as a work of art separate from the "useful" article, and they would qualify as a protectable pictorial, graphic, or sculptural work if they were imagined and considered separately from the useful article into which it is incorporated. Under the Varsity Brands test announced today, design elements are eligible for copyright protection under Section 101 no matter how or where they are incorporated into otherwise utilitarian objects.

The Copyright Act of 1976 prohibits copyright protection of "useful articles"—i.e., those articles having an "intrinsic utilitarian function." Design elements within a "useful article" can be protected, however, but only if the design incorporates "pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects…." The Court accepted certiorari in Varsity Brands to resolve a split among the circuit courts as to how to separate the design from the useful article.

The immediate question before the Court was whether the chevron striping of the Varsity Brands cheerleading uniform was eligible for copyright protection or if the striping was so integral to the uniforms that it served a utilitarian function. The Sixth Circuit had held that the design was separate and thus copyrightable for purposes of Section 101 because it could be physically removed without changing the nature or purpose of the cheerleading uniform itself.

In affirming the Sixth Circuit's decision, the Supreme Court expressly abandoned the distinction between "physical" and "conceptual" separateness between the design and the useful article. Instead, the Court ruled that a design element is "separate" from an article's utilitarian aspects for purposes of Section 101 if the design or feature can exist as its own pictorial, graphic, or sculptural work that would otherwise qualify under that Section once separated. Courts no longer need to consider the effect on the useful article itself, and thus courts do not need to determine whether the article is useful for its intended purpose after the design feature is removed.

Justice Ginsberg concurred in the judgment, but did not join the Court's opinion. According to Justice Ginsberg, the Court did not need to engage in a separability analysis because the designs were not designs of useful articles, but rather were graphic works reproduced on a useful article. Justices Breyer and Kennedy dissented, arguing that the chevron designs were specifically incorporated into the cheerleading uniform and were not "capable of existing independently" of the utilitarian cheerleading uniform.

Ballard Spahr's Fashion Law Group is a national team with decades of experience in the fashion industry. Our Fashion Group includes attorneys who focus on intellectual property, business and finance, data security, litigation, labor and employment, and real estate.


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