On May 8, 2019, the Review Board of the U. S. Copyright Office issued a decision stating that Yeezy 350 Boost Version 1 and Yeezy 350 Boost Version 2 sneakers each include copyrightable subject matter. The Adidas Yeezy sneakers are a collaboration between Adidas AG and Kanye West which has been wildly popular and as a result has been frequently knocked off by imitators. So it is not surprising that Adidas AG pursued copyright protection for these sneakers. This decision by the U.S. Copyright Office clarifies that footwear designs can be perceived as two- or three-dimensional works of art separate from the footwear themselves. Thus, footwear designers clearly have the option of copyright protection for footwear designs having sufficient originality.
In 2017, Adidas AG filed applications for copyright registration of the Yeezy Boost 350 Version 1 and the Yeezy Boost 350 Version 2 which are shown above in photos from the decision. The U.S. Copyright Office initially rejected these applications because the sneakers were said to be “useful articles that do not contain any copyrightable authorship needed to sustain a claim to copyright.” Note that copyright law does not protect useful articles, such as clothing and footwear. See 17 U.S.C. § 101.
Notably, in March of 2017, the U. S. Supreme Court held in Star Athletica, LLC v. Varsity Brands, Inc., that an artistic feature applied onto or incorporated into a useful article may be eligible for copyright protection if it:
“(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.”
In Star Athletica, the Court found that a chevron design on a cheerleading uniform could be perceived as a two-dimensional or three-dimensional work of art separate from the cheerleading uniform itself, and that the chevron design qualified as a protectable pictorial, graphic, or sculptural work when imagined separate from the cheerleading uniform.
After the initial rejections of the applications, Adidas AG filed a first request for reconsideration of the rejections, arguing that the sneakers included three dimensional works of art separate from the sneakers themselves. For Version 1, Adidas AG pointed to the “irregular black lines of various lengths and shapes on a gray fabric with a black semi-circle in the arch and an orange dotted stripe on an off-white heel loop.” As for Version 2, Adidas AG appointed to “several grey lines in a wave pattern with a thick orange stripe on the outsole that fades toward the heel of the sneaker” and “a secondary “inner orange layer that adds intermittent orange coloring.” The Review Board of the U. S. Copyright Office ruled that the sneakers “contain separable designs” citing Star Athletica and sent the applications back down to the registration division of the U. S. Copyright Office. The registration division then again rejected the applications because even though the sneakers “contain separable designs”, “those designs [do] not meet the originality requirement as they consisted of ‘simple shapes arranged into common, expected patterns in very simple color schemes.”
Not to be deterred, Adidas AG filed a second request for reconsideration of the rejections. The Review Board of the U.S. Copyright Office again stated that the design elements cited by Adidas AG “can be perceived as two- or three-dimensional works of art separate from the useful article, that is, the sneaker” citing Star Atheltica. As to the issue of whether these separate works are protectable as original works of authorship, the Review Board held that the designs contain a sufficient amount of original and creative two- and three-dimensional authorship for registration” noting the “the low standard for copyrightability articulated in Feist Publications.” In Feist Publications, the U.S. Supreme Court stated that “the standard for creativity is extremely low” and “it need not be novel, rather it only needs to possess a “spark” or “minimal degree” of creativity to be protected by copyright.” As a result, the Review Board once again sent the applications back down to the registration division of the U. S. Copyright Office for registration of the Yeezy sneaker designs.
Footwear designs are commonly protected by design patents. In fact, Adidas AG obtained U.S. design patents for Yeezy Boost 350 sneakers. For Example, see U. S. design patent numbers D838,958 and D821,078. After this Adidas Yeezy decision, design patents will likely remain the most common choice for protecting footwear designs because it is not required to prove copying in order to establish infringement of a design patent. However, this Adidas Yeezy decision indicates that copyright is an additional or alternative option for protecting footwear designs having sufficient originality. The copyright option can be beneficial because of lower cost to obtain, ability to record with U. S. Customs for enforcement at ports of entry, availability of statutory damages and attorney fees for infringement if registered prior to infringement, and longer terms of enforceability. Footwear designers should carefully consider each of these options for their new designs.