The fashion industry has undergone many changes over the decades, yet the legal framework remains stagnant. Intellectual property is an avenue by which clothing designs can be given legal protection. Design patents can grant protection to a novel and unique design, but as most forms of design are functional, this is hard to accomplish. The same goes for trademarks. With copyrights, courts have swayed in one direction or another in giving protection.
The case before us is Star Athletica v. Varsity Brands. Here, the question is whether designs on cheerleaders’ uniforms can receive copyright protection. The Supreme Court Justices have expressed different viewpoints on this issue. In general, something cannot receive copyright protection if it is functional. Copyrights aim to give protection to works of creative expression. If something merely serves a functional purpose, this is contrary to the Copyright Office’s intent. Now, the struggle is about whether protection can be given to articles of clothing that have an insignia or artistic element to them. In accordance with Title 17 of the U.S. Code-pictorial, graphic, and sculptural works can receive copyright protection. Clothing falls under this subcategory. Even with this clause warranting protection, a work cannot be given protection if it is purely functional. Separability of the function from the design must be possible before there can be protection.
Design vs. Function
The courts have been dealing with this ongoing issue of design versus function for some time now. Function refers to the utilitarian and everyday use of the work. For example, a spoon is an implement used to eat food with. That is its function. However, if a spoon is conceived that not only holds a function but shows some artistic merit, then it could potentially receive copyright protection. For something that has both functional and artistic elements to it, only the artistic elements can be given copyright protection. Numerous cases have spoken to this idea of “conceptual separability.”
If the functional elements can be separated out from the artistic elements, then the work can potentially receive copyright protection. Courts have approached this in many different ways. Some courts have held that only a lay observer-someone who is a typical consumer-should be the one to determine if the function can be separated from the artistic elements. Other courts have used other methods.
Turning to the issue at hand, can a cheerleader’s outfit that portrays a design on it pass this test? For one, the outfit does serve a functional purpose. After all, it is an article of clothing that is designated for cheerleaders. This is its function. As for the design sprawled across its front, this is indeed aesthetic. But the underlying problem is if the art and the function have become merged together to the point where the two elements cannot be separated out. If this is case, then copyright protection is not an option. To step back, the separation of the two does not have to be a physical separation, but rather a conceptual separation. In other words, if someone can perceive in their mind that the two ideas are separate, then it can be protected. If they have become intermingled such that the observer can’t tell the difference, there is no protection. Here, there is some artistic value to the symbolism and insignia portrayed on the outfits.
At the end of the day, it will come down to the courts to decide this. Fashion industry has brought many articles of clothing before the USPTO in hopes of getting copyright protection. The Copyright Office has turned down many applications and done so on the grounds that the functionality outweighs the artistic merit. That seems to be the case here as well.
Fashion is tricky because intellectual property rights over pieces of clothing and accessories are hard to obtain. This is because under all three schemes-patents, trademarks, and copyright-for protection to be given, the work cannot be functional or utilitarian. That is why knockoff clothes are found everywhere. There are no legal measures against it. Courts need to find a balance between granting protection and denying protection to clothes that are too generic and are functional.
Authored by Sam Behbehani, LegalMatch Legal Writer