In a very recent case involving attributes of cheerleading uniforms, the U.S. Supreme Court determined that certain aspects of the design of the uniforms are eligible for copyright protection. In abrogating the previous view that no aspect of fashion could be copyrighted since it pertained to a “useful article,” the Court announced a new standard to be applied in such situations. Specifically, it held that “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two or three-dimensional work of art separate from the useful article, and would qualify as a protectable pictorial graphic or sculptural work[.]”
While the full ramifications of this case will not emerge for some time, our experience with the Copyright Office indicates that examiners are applying the Court’s holding to all applications to register copyrights relating in any way to a tangible article and that the issue should be addressed proactively in connection with such applications.
More broadly, those who manufacture or sell anything to do with fashion should discuss with counsel potential legal protection now available for their work in light of this case. Appropriate notice should be included on articles for which protection may be sought. Similarly, those who develop or sell a tangible article which might arguably overlap with the work of another need to be wary of potential infringement claims from other vendors, and should frequently monitor whether any relevant copyright registration applications have been or are likely to be filed. The mentality held by some, that the fashion space is a free-for-all where legal protection is irrelevant, is no longer accurate.
The changes wrought by this case are likely to have major commercial implications for all industry participants, some of which are not yet apparent, but which warrant ongoing monitoring of the legal and market environments.