This blog post was first published on March 28th, 2017. 

Last week, the U.S. Supreme Court ruling in the case of Star Athletica, L.L.C. v. Varsity Brands, Inc., ET AL., provided clothing designers with more guidelines to copyright their original designs. Specifically, the Court issued guidelines to determine whether a clothing design is a “separable” expression and thus copyrightable. If a clothing designer can prove that their clothing design is “separable” from the utilitarian function of the clothing, they can prevent others from reproducing the design in any medium.

The Supreme Court held that a clothing design, which is a feature incorporated into the design of a useful article, could be protected if and 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.”

Generally speaking, what is termed as “useful articles” such as clothing are not afforded copyright protections in the U.S. unless it can be shown that the design feature itself is separate from the article of clothing. In other words, the design has no utilitarian function. Prior to the ruling, the idea of “separability” in this context has bewildered the courts. As was stated by Justice Thomas, “We granted certiorari to resolve widespread disagreement over the proper test for implementing §101’s separate-identification and independent-existence requirements.” What this ruling does is provided a clearer guidelines for courts to determine when a clothing design is separate from the utilitarian function of the article, and thus can be afforded copyright protections.