What Do Chevrons, Stripes & Romance Have in Common? A US Supreme Court Decision!

Thumbnail image for What Do Chevrons Stripes Romance Have in Common A US Supreme Court Decision by Bill Samuels

If you thought that US Supreme Court justices lacked romantic proclivities, you're wrong!

Some months ago, in a conversation between the justices about a very important copyright issue involving fashion, Justice Stephen Breyer stated, "The clothes on the hanger do nothing. The clothes on the woman do everything." Justice Elena Kagan immediately interjected with, "That's so romantic!"

Romantic or not, the justices were determining whether or not a feature of a useful article is protectable under Section 101 of the Copyright Act. 

Star Athletica, LLC v. Varsity Brands, Inc.

This case involves two large manufacturers and distributors who compete in the cheerleading apparel industry.

Star Athletica, the petitioner, created a new cheerleading uniform in 2010. The stripes, chevrons, zig zags, and color blocks are all part of the description of the uniform in dispute. Varsity Brands sued for copyright infringement; Varsity owns a copyright registration for a two-dimensional cheerleader uniform drawing and photo.

The case was first heard in the United States District Court for Tennessee. That court decided that Varsity's design cannot apply, because it is a uniform and the design could not be conceptually separated from the utilitarian aspect of the objects themselves.

However, the United States Court of Appeals for the 6th Circuit reversed that decision, finding that the design is copyrightable. This reversal resulted in a petition to the US Supreme Court.

This case has prompted a lot of conversation and initiatives about whether you can protect a certain design, especially in the fashion industry. Traditionally, the protection for the fashion industry was offered by design patents in addition to trademark protection for the brand. Design patents give protection to a certain design if there is a novelty, which is hard to prove.

In Star Athletica, LLC v. Varsity Brands, Inc., the Supreme Court held that "a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work--either on its own or fixed in some tangible medium of expression--if it were imagined separately from the useful article into which it is incorporated." Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1005, 197 L. Ed. 2d 354 (2017).

Applying copyrights to three-dimensional useful articles, i.e. clothing, high-end fashion designers will get closer protection for their products that get knocked off by smaller players even before their product hits the stores. This decision brings a new standard to the forefront of the fashion industry.

And with this decision, the Supreme Court case on "romance" is adjudicated!

Please contact us with thoughts or questions. 

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