VOL. 1. LEGAL NEWS YOU CAN USE NO. 14
Design Features Incorporated into Clothing May Be Protected Under Copyright Protection
In a groundbreaking judgement, The U.S. Supreme Court’s decision in Star Athletica, L.L.C. v. Varsity Brands opens the door to copyright protection for two- or three-dimensional designs incorporated into clothing to receive copyright protection.
The significance of this decision grants protection of the art design ranges from the standard 15-years of protection under patent design law to the life of the artist plus 70 years under copyright law. This provides substantial licensing and economic rights that will likely change the nature of designs in clothing, which previously were relegated to utilitarian purposes under patent law.
In Star Athletica, L.L.C. v. Varsity Brands, Varsity filed for copyright infringement arguing that Star Athletica copied it’s two dimensional designs, subject to copyright protection. The Sixth Circuit Court of Appeals agreed with Varsity that the graphic designs were “capable of existing separately” from the clothing articles, which made them independent, copyrightable work.
Section 101 of the Copyright Act of 1976 states:
“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. [17 U.S. Code § 101]
The U.S. Supreme Court majority found 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 (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.