UPDATE to our September 2015 post

On March 22, 2017, a 6-2 Supreme Court found Varsity Brands’ designs on cheerleading uniforms to be copyrightable, holding that “an artistic feature of the design of a useful article is eligible for copyright protection 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 other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.” See Star Athletica, LLC. v. Varsity Brands, Inc., 580 U.S. __ (2017) (No. 15-866), Op. at 1-2.  In doing so, the Court affirmed the Sixth’s Circuit decision below.


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U-P-D-A-T-E! On May 2, 2016, the U.S. Supreme Court granted certiorari to address the question: “What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?”. The answer to this question may have far-reaching implications for the retail and fashion industries – stay tuned for future u-p-d-a-t-e-s!

Group of Cheerleaders in a Row

Originally published September 10, 2015

A recent decision from the Sixth Circuit highlights the ongoing significance of copyright law for the retail and garment industries. On August 19, 2015, the Sixth Circuit, in reversing the lower court’s decision, held that the “stripes, chevrons, zigzags, and colorblocks” on Varsity Brands’ cheerleading uniforms are protectable by copyright. In Varsity Brands et al v. Star Athletica, the Sixth Circuit dipped into the murky waters of copyright protection for fashion design, reiterating the need for greater legislative or judicial guidance when it comes to fashion design and copyright law. Nonetheless, the Court ultimately found, as other Circuits have, that “fabric design”, unlike “dress design”, is protectable.

At the district court level in Tennessee, Varsity Brands sued Star Athletica for infringing its registered copyrighted designs for cheerleader uniforms. On summary judgment, the district court determined that a cheerleading uniform cannot exist without the hallmark “stripes, chevrons, zigzags, and colorblocks,” and therefore found Varsity’s copyrights of such designs invalid as inseparable from the utilitarian aspect of a cheerleading uniform.


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FLC Pic

On February 12, 2016, the Federal Bar Association will host a day-long Fashion Law Conference at Parsons School of Design (Starr Foundation Hall in the New School’s stunning new University Center) on the last day of New York Fashion Week!

Speakers include in-house counsel from The Estee Lauder Companies, Inc., Tiffany & Co., New York

Danielle Air Jordans

Michael Jordan has settled two high-profile right of publicity lawsuits with two now-defunct grocery chains – Jewel Food Stores and Dominick’s Finer Foods.  In August, a jury awarded Jordan $8.9 million after a federal judge determined that Dominick’s violated Jordan’s rights under the Illinois Right of Publicity Act.  Jewel and Jordan were scheduled to start

Crowell & Moring is partnering with the United States Fashion Industry Association (USFIA) for an October 20 webinar covering the emerging legal landscape for the fashion industry in the digital media age. The webinar will run from 2:00 to 3:00 pm ET and will explore how to:

  • Best protect your intellectual property rights as fashion

On Wednesday, September 16, 2015, Advertising and Product Risk Management partners Cheri Falvey and David Ervin and Intellectual Property and Legal Affairs Counsel for the Ralph Lauren Corporation, Tracie Chesterman, presented at an exclusive breakfast hosted by Crowell & Moring and Women’s Wear Daily. The speakers discussed the “New Rules of Digital Marketing

Group of Cheerleaders in a Row

A recent decision from the Sixth Circuit highlights the ongoing significance of copyright law for the retail and garment industries. On August 19, 2015, the Sixth Circuit, in reversing the lower court’s decision, held that the “stripes, chevrons, zigzags, and colorblocks” on Varsity Brands’ cheerleading uniforms are protectable by copyright. In Varsity Brands et al v. Star Athletica, the Sixth Circuit dipped into the murky waters of copyright protection for fashion design, reiterating the need for greater legislative or judicial guidance when it comes to fashion design and copyright law. Nonetheless, the Court ultimately found, as other Circuits have, that “fabric design”, unlike “dress design”, is protectable.

At the district court level in Tennessee, Varsity Brands sued Star Athletica for infringing its registered copyrighted designs for cheerleader uniforms. On summary judgment, the district court determined that a cheerleading uniform cannot exist without the hallmark “stripes, chevrons, zigzags, and colorblocks,” and therefore found Varsity’s copyrights of such designs invalid as inseparable from the utilitarian aspect of a cheerleading uniform.

In a 2-1 decision,
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Caveat Brand Owner: We are in the beginning of a two-month “sunrise period” for trademark owners to register their marks as second level domain names in “.sucks.” While the purported purpose of the “.sucks” domain name is to provide a forum for customers to voice constructive criticism, trademark owners may disagree.  The hefty price tag

Trademark applicants and registrants may experience increased scrutiny of their trademark use claims in light of the results of a recent Pilot Program, conducted by the United States Patent and Trademark Office (USPTO), showing that fifty percent (50%) of approximately 500 randomly selected registrants could not support the claims made in previously filed Declarations of

Both have recently brought legal actions against video game makers alleging that their rights of privacy or publicity have been violated by characters in video games. The lawsuits are the latest in a series of high profile disputes that pit an individual’s personality rights against a game maker’s First Amendment rights.

Various states have enacted statutes that protect an individual’s right to “publicity” or “privacy.” The statutes differ from state-to-state but the basic idea is that an individual should have some right to prevent unauthorized commercial use of his or her name, likeness and identity by a third party. This is sometimes referred to as “personality rights.”

The expressive content of video games, on the other hand, is subject to protection under the First Amendment. The extent to which the First Amendment rights of a video game manufacturer may permit the use of real people as characters in video games without violating the individual’s personality rights has been the subject of much interest and discussion in the recent past.

The discussion resumed in earnest in early July when Ms. Lohan brought an action in New York state court alleging that the maker of the video game Grand Theft Auto V had violated her right of privacy under New York state law by the use of her image, likeness, “screen persona” and details from her personal life in depicting a character in the game named Lacey Jonas. A few weeks later, Mr. Noriega brought an action in California state court alleging that the maker of the video game Call of Duty: Black Ops II violated his right of publicity under California state law by illegally using his image and likeness in connection with a character described “as a kidnapper, murderer and enemy of the state.” The lawsuits have been treated by some in the media and by some commentators with a certain degree of amusement and in Mr. Noriega’s case – whose colorful resume includes convictions for drug trafficking, racketeering and money laundering as well as a lengthy stint as a U.S. Prisoner of War – outright disbelief, but they raise serious issues regarding the interplay between the First Amendment and the rights of privacy and publicity.


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