Can you copyright fashion? The Supreme Court’s Decision

Fashion, an industry based on inspired design has a copying problem. What’s a designer to do in this world of knock-offs with few ways to protect their intellectual property? To get an answer the industry had to go all the way to the Supreme Court who made a landmark ruling on copyright in fashion in Star Athletica, LLC v. Varsity Brands, Inc. Lawyer Michele Berdinis of BeeLine Legal breaks down the facts of this monumental case and what it means for fashion brands of all sizes.

On March 22, the U.S. Supreme Court ruled in the Star Athletica v. Varsity Brands case. Many in the fashion industry have been eagerly following this case but, for those who haven’t, here’s some background.

Varsity Brands designs and sells cheerleading uniforms and owns more than 200 U.S. copyright registrations for the designs that appear on their products. Here’s an example of two of the designs Varsity Brands registered with the U.S. Copyright Office:

Star Athletica also sells cheerleading uniforms and Varsity Brands sued Star Athletica for infringing on its copyrighted designs.

In 2014, the U.S. District Court ruled that because the designs used by Varsity Brands can’t be physically or conceptually separated from “the utilitarian function” of the uniform, the designs are functional elements, which can’t be protected by copyright. Therefore, Varsity Brands did not have a valid copyright and Star Athletica did not infringe on anything.

Varsity Brands appealed the District Court’s decision to the Court of Appeals. This brought the case all the way to the U.S. Supreme Court who after much debate ruled this week in favor of the Court of Appeals ruling that Varsity Brands does not have a valid copyright.

So, what does this all mean for fashion designers?

  1. It’s always been true that a fabric graphic design CAN be copyrighted (think Marimekko®).
  2. It’s always been true that a dress design can NOT be copyrighted.

All the Supreme Court said in this court ruling was that Varsity Brand’s designs are enough like statement 1 (rather than statement 2) to let the lower court have a trial to determine whether Star Athletica’s cheerleader uniforms infringe on Varsity Brand’s copyrights.

Boiled down, the ruling means that the cut, shape, style, or fit of a piece of clothing cannot be protected through copyright. Here’s what the Supreme Court said:

“To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric. [Varsity Brands has] 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. They may prohibit only the reproduction of the surface designs in any tangible medium of expression—a uniform or otherwise.”

With this ruling clothing designers are going to have to continue to rely primarily on the strength of their brands, the quality of their goods, and the loyalty of their customers not copyright law to protect their designs.

At Nineteenth Amendment, we give designers a way to go to market faster than a fast fashion retailer can knock off a design. We also encourage designers to create their own fabric prints which can be copyrighted (we love Spoonflower and other digital, on-demand printers!) and we encourage designers apply for a trademark for their logos and brand. Beeline offers one stop, affordable trademark services (we filed our trademark through Beeline!). If you’re interested in applying for a trademark visit beelinelegal.com and let Michele know you’re a Nineteenth Amendment designer!

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1 Comment

  1. Sounds like this:
    1. We’re making loads of money and our margins are really very good
    2. We dont want to allow anyone else to make this uniform
    3. The case rests on the word uniform (not so much on the design)
    4. Only us should be allowed to make this uniform.

    Ps better sell your varsity shares real soon…

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