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!
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.