On October 31, 2016, the Supreme Court of the United States (SCOTUS) deliberated chevron, zigzag, and stripe designs on cheerleader uniforms.  What is very likely to be a landmark decision, Star Athletica v. Varsity Brands addresses the issue of copyright protection for designs on clothing, long held in some controversy by courts attempting to decipher myriad tests and prior decisions.  The issue stems from the fact that clothing is inherently a useful article, one with a utilitarian function that is not merely to portray its appearance or convey information about it, and useful articles are not protectable by copyright.  Designs of useful articles can only be covered by copyright if they are pictorial, graphic, or sculptural features that can be physically or conceptually separated from the useful article.

Varsity Brands, which registered copyrights for its cheerleading uniform colored chevron, zigzag, and stripe designs, argued before the SCOTUS such designs were eligible for copyright protection because they could be conceptually separated from the utilitarian aspects of the uniforms themselves.  In contrast to physical separability, the copyrightable design elements do not have to be actually separable from the useful article to be protected under the test of conceptual separability, but do have to be able to be perceived as separate works worthy of copyright protection when considered disparately from the useful article to which they are attached.  Unfortunately, the test for conceptual separability has greatly varied among courts to date, causing the copyright eligibility of apparel to be in constant doubt.  During the oral arguments by the parties, the SCOTUS leaned heavily on the negative implications and possible extremes of granting such protection, including concerns over monopolies, line-drawing related to whether a design defines the article it is on or stands alone, and the always-popular slippery slope of increased litigation.

What the legal community is hoping for from the SCOTUS decision is a definite test for conceptual separability of copyright-eligible designs on useful articles, which would be momentous not only for the fashion industry, but for multitudes of commercial endeavors that blend function and design (furniture, vehicles, jewelry, 3D printing, etc.).  Given their worries and evident biases thus far in oral arguments, however, the Justices may also decide the case, but fail to articulate a legal framework for the future, in which case the conceptual separability doctrine will continue to subsist in controversy.  One way or another, the development is one to watch.

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