On August 19th, 2015, an en banc panel on the Sixth Circuit ruled that cheerleading uniforms are eligible for copyright protection. This decision prompted the losing party, Star Athletica, to request that the panel overturn the decision, citing “immense practical implications” for the apparel industry. The split Sixth Circuit panel found that stripes, chevrons and other elements on uniforms could be protected by copyright.

This decision is particularly noteworthy because clothing, as a “useful item”, is typically considered to be outside of the purview of copyright protection. However, the panel explained that that Varisty’s designs were eligible for copyright protection because they are “conceptually separable” from the clothing.

On Wedesnday, September 16th 2015, Star Athletica filed a petition for an en banc rehearing arguing that the ruling runs counter to Congress’ intention not to extend copyright protection to clothing. Furthermore, Star Athletica noted that the Sixth Circuit’s decision intensifies an emerging circuit split, as other circuits have applied a stricter review to the “separabilty” threshold. In its petition, Star Athletica argues, “If the panel majority’s ruling is left in place, scores of industrial designers will start claiming protection for pleats on tennis skirts, button patterns on golf shirts, and colored patches on rugby uniforms.”

The panel dismissed the argument that Varsity’s copyrighted decorative elements were inseparable from the identity of the garment. Star Atlhetica argues that the panels ruling directly conflicts a ruling of the Second Circuit which found that sequins and crystals on a prom dress could not be copyrighted because of their ‘intrinsic’ nature to the function of the dress.

Star Athletica is not alone in its position. Following the majority’s ruling, U.S. Circuit Judge David McKeague issued a firm dissent rejecting the panel’s assertion that key decorative elements of apparel were distinct from the clothing’s function. “As the district court recognized, the reasonable observer would not associate this blank outfit with cheerleading. This may be appropriate attire for a match at the All England Lawn Tennis Club, but not for a member of a cheerleading squad,” argued Mckeague. Star Athletica’s petition relied greatly on Judge McKeague’s dissent.

It will be interesting to see how the panel handles this petition, as the potential implications for clothing and apparel designers are significant.

Zachary Crane

http://www.law360.com/articles/692890

Varsity Brands Inc. et al. v. Star Athletica LLC, case number 14-5237, in the U.S. Court of Appeals for the Sixth Circuit.

 

Tagged with:
 

One Response to Can You Copyright Apparel?

  1. ehicks says:

    This is a very interesting decision from the Sixth Circuit. Unlike other countries with a large fashion industry, such as France and Italy, the United States has always been unwilling to afford copyright protection to clothing. It has also been difficult to protect clothing under trade dress in trademark law. It will be interesting to see how other courts, and potentially even Congress, will respond to this decision.