Supreme Court to Consider Whether Apparel Design Is Protected By Copyright Law

On May 9, 2016, the firm published an alert titled “Supreme Court to Consider Whether Apparel Design Is Protected By Copyright Law.” Last week the Supreme Court announced that it will take up the question of whether certain aspects of cheerleading apparel are entitled to copyright protection.

Star Athletica, L.L.C. v. Varsity Brands, Inc., ---- S.Ct. ----, 2016 WL 98761 (2016).  For decades, courts have struggled to determine whether apparel designs are separable from their utilitarian functions, so as to qualify for copyright protection.  In considering this question, the Sixth Circuit rejected nine different tests for conceptual separability applied by other courts and instead crafted its own hybrid approach, holding that the stripes, patterns and colors in cheerleading uniforms are not protected by copyright.  The Supreme Court’s decision is expected to bring long-awaited clarity – or at least uniformity – to this challenging issue and will provide guidance to litigants seeking to protect the decorative aspects of their apparel.