While some industry members see the narrow holding as a positive affirmation that garments may receive limited copyright protection, others see it as a wasted opportunity to expand copyright protection for garments and support the apparel industry.
Put down the pompoms. The Supreme Court’s recent ruling in favor of cheerleading uniform titan Varsity Brands has brought both cheers and jeers as the fashion industry struggles to call it a win.
By a 6-2 vote, the Supreme Court held that the design elements on Varsity Brands’ cheerleading uniforms were separable from the underlying garments, making the elements eligible for copyright law protection. The Court declined to extend copyright protection to the underlying garments themselves—garments still remain useful articles, which have a utilitarian purpose that precludes them from protection under §113(b) of the Copyright Act.
Writing for the majority, Justice Clarence Thomas focused on crafting a new, nationwide separability test, which prior to the ruling had disparate approaches across the circuits. Favoring a simpler, two-step test over the Sixth Circuit’s five steps, the Court held that for a design element to be separable from the underlying useful article, the element must “be perceived as a two- or three-dimensional work of art separate from the useful article,” and exist independently as such when “imagined separately from the useful article into which it is incorporated.”
In a very narrow holding, the Court declined to rule on whether the design elements at hand—chevrons, stripes and color-blocking—were actually sufficiently original for copyright protection, instead deeming them separable and thus eligible for protection. The Court also explicitly cautioned against viewing the decision as an expansion of copyright protection for garments themselves:
“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 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.”
Since the ruling, the fashion industry has struggled to call the decision a win. While some industry members see the narrow holding as a positive affirmation that garments may receive limited copyright protection, others see it as a wasted opportunity to expand copyright protection for garments and support the apparel industry.
Whether the decision signifies a stalemate or tie between copyright and fashion will in part depend on how the circuit courts apply the new separability test. The crowd will be watching.