Technology Law and Electronic Media Update

March 31 2017
U.S. Supreme Court Affirms Copyright Protection for “Separate” Decorative Artwork Embodied in a Garment

In the case Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had to decide whether the colored stripe patterns that were a feature of Varsity Brand’s cheerleader uniform products were eligible for copyright protection.  The Court held that “if the feature [e.g. the stripe patterns]  (1) can be perceived as a two or three dimensional work of art separate from the useful article [e.g. the garment] and (2) would qualify as a protectable pictorial, graphic or sculptural work either on its own or in some other medium if imagined separately from the useful article.”  The Court decided that in this case, plaintiff’s stripe designs passed the two-step test. The court’s rationale (following an old case, Mazer v. Stein) was that “[a]n artistic feature that would be eligible for copyright protection on its own cannot lose that protection simply because it was first created as a feature of the design of a useful article, even if it makes that article more useful.”  The court rejected the argument that the stripe patterns themselves were functional, and thereby disqualified for copyright protection, because cheerleader uniforms need stripe patterns to function as cheerleader uniforms.   However, this decision is not a win for those in the fashion industry who seek copyright protection for garment designs because the opinion stated, “to be clear” that “respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.” As a result, the opinion did not change the scope of copyright protection so much as address how courts should test for copyright eligibility of design elements in useful articles.