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SCOTUS tackles the question of copyright in the fashion industry

By Kathryn Higgins

01 November 2016 at 10:19 BST

A spat over cheerleader uniform designs has uncovered probing legal conundrums for fashion industry IP.

Mirko Vitali

The case before the Supreme Court of the United States on Monday was that of Star Athletica vs. Varsity Brands, two leading manufacturers of cheerleading uniforms. The nation’s highest court had been asked to decide whether Star Athletica had broken the law by producing and retailing cheerleading uniforms with similar designs to those produced by market leader Varsity Brands. However, as the case progresses, it is becoming apparent that a ruling on the case could have sweeping implications for the global fashion industry should the Supreme Court rule that clothing designs, as thee-dimensional garments rather than two-dimensional design outlines or elements, are protectable under copyright law.

Far-reaching implications

Justice Stephen Breyer explained on Monday: ‘For a hundred and more years than that, the fashion industry has not enjoyed copyright protection. On the women’s side, I believe, $225 billion, at least, worth of clothes are sold every year. If suddenly in this case we say that dresses are copyrightable, and they are because every one of them has some design, perhaps we’ll double the price of women’s clothes.’ A ruling in favour of Varsity Brands could also have profound implications for the viability of the knock-off industry, which has long relied on the ambiguous copyright protection afforded to fashion items.

Between function and fashion

Brand iconography and imagery has long been afforded protection under copyright law, with the distinction between function and ‘fashion’ appearing to be the key variable upon which such protection hinges. Those elements that do not contribute to the utility of a garment in any way, such as logo, can be considered as unique design elements, while those that a clearly functional, such as a zip or a clasp, cannot. Under dispute in the current case is whether the design of a cheerleading uniform, in its capacity to aesthetically ‘alter’ the appearance of the wearer, can be considered as directly functional. While the design elements under dispute are two-dimensional – they include zig-zag patterns and prints, among others – the intersection of fashion garment and team uniform makes the case unique, as Chief Justice John Roberts Jr explains: ‘The whole point of this case is that we’re not just talking about two-dimension artwork. We’re talking about two-dimensional artwork applied to the fabric in a way that coveys a utilitarian function… to convey a particular message. It shows that you’re a member of the cheerleading squad.’

Sources: New York Times; Wall Street Journal; Forbes


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