Though the U.S. Copyright Act does not currently offer protection for functional aspects of apparel designs, copyright protection does extend to purely decorative features of clothing that can exist independent of their functional aspects. This murky area of copyright law, known as the “Conceptual Separability Doctrine”, was the focus of a recent decision by the Sixth Circuit in Varsity Brands et al. v. Star Athletica. The court ruled that the decorative chevron designs on cheerleading uniforms are eligible for copyright protection.
In reaching its conclusion, the court carefully distinguished between fabric design and garment design: fabric design covers designs printed on a completed article of clothing, whereas dress design refers to the shape, cut, style and dimensions of a finished article of clothing. Dress design has historically been deemed inseparable from an article of clothing’s utilitarian aspects, and so is ineligible for copyright protection. Focusing on the graphic design elements, the majority held that chevrons, stripes, and other decorative elements of plaintiff Varsity Brands Inc.’s cheerleader uniforms were “identifi[able] separately from, and are capable of existing independently of, the utilitarian aspects of cheerleading uniforms[;]” consequently, Varsity’s graphic designs were held to be copyrightable. (This was a threshold consideration in this case before the court could determine whether defendant Star Athletica, a competitor of plaintiff, had infringed Varsity’s designs.)
Historically, the conceptual separability doctrine is applied by courts to distinguish the functional aspects of a useful article from its purely decorative elements. But as both the majority and dissenting opinions noted here, the appropriate scope of protection to be afforded to apparel is one of the more obtuse areas of U.S. intellectual property law. While other countries have adopted laws recognizing rights in designs, including apparel designs, separate and apart from traditional intellectual property law, efforts to provide quasi-copyright protection for apparel designs in the U.S. have failed on multiple occasions (as we previously discussed here in further detail). Consequently, designers are forced to undertake the Sisyphean task of bending copyright and/or trade dress law to protect their designs from quick-copying fast-fashion retailers, and typically fail to obtain protection. It came as no surprise, then, that in his dissent, Circuit Judge David McKeague expressly requested from Congress or the Supreme Court some “much-needed clarification” in light of the law’s uncertainty, echoing concern over the piecemeal rulings have plagued the fashion industry for some time.