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On Wednesday, the Supreme Court announced that it will hear a copyright case, the vague likes of which it has taken on hundreds — thousands! — of times. And while we at Fashionista don't generally report on the goings-on of the highest court of our land, this particular investigation, which we first saw via Bloomberg, struck our fancy. Why? It's about cheerleading uniforms, and it could decide the types of clothing that could be copyrighted in the future.
To set the stage a bit, understand that U.S. copyright law states that three-dimensional items that serve a physical function — like drapes, refrigerators or, in this case, cheerleading uniforms — can't be protected, but two-dimensional surface patterns, like prints and overlays, can. We reached out to Susan Scafidi, Academic Director at Fordham University's Fashion Law Institute, for her interpretation: "If you draw a picture, it gets copyright protection; if you put that picture on the front of a T-shirt, the picture still gets copyright protection, even though the T-shirt doesn't."
Now, onto the case in question. In 2010, Varsity Brands, the world's largest manufacturer of cheerleading uniforms, sued a competitor, Star Athletica, claiming that it had violated Varsity's copyrighted designs. But here's where it got sticky: While Varsity's physical uniforms can't be copyrighted, the designs on top of its costumes can. As Scafidi described, copyright law protects art, but not the "useful" items themselves. But what about clothing, which is both aesthetic (protected by law) and functional (not protected)?
In an email, Scafidi wrote that such designs as the ones Varsity originally copyrighted can be safeguarded if the aesthetic elements can be imagined separately from its underlying functional item. The Supreme Court has not yet been tasked with defining this idea — which Scafidi called "conceptual separability" — and this particular case may serve as its official opportunity to do so. Scafidi explained:
"Lower courts have developed different tests for conceptual separability, so the Supreme Court's mission may be to state a single, unified test that will give the same result in every case involving items that are both artistic and functional — whether that means clothing, carpets, or kitchen appliances."
To be sure, the U.S. copyright law as it stands proves to be useful for designers (and cheerleading uniform manufacturers) who create their own prints; their patterns get protection no matter what. But should the Supreme Court rule that art and functionality are no longer separate entities, this won't be the case. Neither will be protected under copyright law, and could make it much more difficult for designers to brand and control their fabrics.
As Scafidi said: "Depending on the Supreme Court's decision, the fashion industry could either breathe a sigh of relief and get to keep the scrap of protection that it has under U.S. law... or try to stitch together another option."
UPDATE, Wed., March 22: A full 10 months after the U.S. Supreme Court first announced that it would hear a copyright case — Star Athletica v. Varsity Brands — over cheerleading uniforms, the Court decided on Wednesday that decorative elements of cheerleading uniforms (in this case, Varsity's) are, indeed, protected by copyright law.
Per The Fashion Law, Justice Clarence Thomas clarified this notion of "conceptual separability," as explained above, writing:
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 (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. That test is satisfied here.
Applying the proper test here, the surface decorations on the cheerleading uniforms are separable and therefore eligible for copyright protection. First, the decorations can be identified as features having pictorial, graphic, or sculptural qualities. Second, if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art under §101. Imaginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uniform itself.
With the artistic and functional both protected under copyright law, designers and brands will continue to have ownership over their patterns, prints and fabrics, which, in the eyes of the law, qualify as art.