Member Article

The United States Supreme Court agreed on Monday, May 2, 2016 to hear argument on what one party called “the single most vexing, unresolved question in all of copyright”—determining when a feature of a “useful article” like clothing is eligible for copyright protection. Section 101 of the Copyright Act prohibits copyright protection for “useful articles” like clothing unless the clothing’s component features can be “identified separately from, and existing independently of, the utilitarian aspects” of the clothing itself. In Star Athletica, L.L.C. v. Varsity Brands, Inc., the Court will look at whether the stripes and chevron designs on five of Varsity’s cheerleading uniforms are copyrightable. But many commentators hope that, regardless of the outcome, the decision will clarify how to apply § 101’s “useful article” provision, as there are now numerous approaches that have been developed by the circuit courts and the Copyright Office. Most agree that the decision will have far-reaching effects in the garment industry, and possibly other industries where the aesthetic value of products is important.

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