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Supreme Court Rules That Elements of Apparel Design are Copyrightable

In a closely watched case, the U.S. Supreme Court ruled today that decorative elements of a cheerleading uniform can be protectable by U.S. copyright law.  The opinion was much anticipated because clothing has generally been considered to be a “useful article” that is not subject to copyright.  This issue has not been squarely addressed by the Supreme Court before today and lower courts were in, as the Court put it, “widespread disagreement” on the proper standard to apply.

The majority opinion was written by Justice Thomas and joined by four other justices.  Justice Thomas’ opinion held that an element of clothing could be protected if it “can be perceived as a two- or three-dimensional work of art separate from the useful article” and it would qualify for copyright “if it were imagined separately from the useful article into which it is incorporated.”  The Court found that the designs represented on the surface of the cheerleading uniform could meet that standard in principle.  (The Court demurred on the issue of whether the particular designs in question are actually sufficiently original to be copyrightable and limited its ruling to surface designs in general.)

In our opinion, the Supreme Court was quite careful to neither create nor destroy any well-established rights.  Broadly speaking, the state of copyright law for apparel before this decision was that protection was available for elements of fashion that can be clearly separated out, such as prints on fabric, but not for the shape, cut, or dimensions of the clothing at issue.  That is essentially the ruling that the Court made today.  Today’s decision therefore does not represent a significant change in the law, but rather the most common interpretation of the prior legal system has now received the imprimatur of the Supreme Court.

An issue that remains outstanding is whether fashion designs more original than cheerleader uniforms would be eligible for protection.  The Court’s analysis was limited to prints on the “surface” of the uniforms and whether protection beyond the “surface” is available was not addressed.  That type of protection, however, is rarely applied under the existing law.  To be protectable in the future, such a design would need to “be perceived as . . . separate from the useful article” – i.e., clothing.  Demonstrating that a particular clothing design is separable using this test would not be easy.  Today’s opinion suggests that the Supreme Court does not appear to be eager to push the limits in favor of copyright protection here.