When Clothing Is A Work Of Art

In a 6-2 decision, the U.S. Supreme Court issued its decision in Star Athletica, L.L.C. v. Varsity Brands, Inc.1 in which it held that aspects of Varsity Brands Inc.'s cheerleading uniform designs are protectable under the U.S. Copyright Act. The decision attempts to clarify the law regarding the separability of copyrightable aspects of otherwise useful articles. Various tests have been applied by federal courts. In the world of fashion, clothing has often been found to be a useful article such that its design cannot be the subject of a copyright, aside from fabric design or a traditional pictorial or graphic design. This decision arguably expands copyright protection over clothing designs (or other useful articles) if the feature of the design "(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 other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated."

The question faced by the Court in this case was "What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?" Section 101 of the Copyright Act permits protection of the design of a useful article as a pictorial, graphic or sculptural work "only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."2 Using the two-step test articulated in the decision, the Court held that Varsity Brands' cheerleading uniform designs satisfied the test and were protectable under the Copyright Act. Without opining as to whether the design elements of...