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Copyright and the “Useful Article

 

Copyright and the “Useful Article Doctrine”

 

The “useful article” doctrine denies copyright protection for aspects of clothing design that are considered inherently functional or “utilitarian.” See “The Copyright Law of 1976,” codified at 17 U.S.C. § 101 et seq. For example, the useful article doctrine would generally prevent a designer from receiving copyright protection in the three-dimensional cut or shape of a shirt, since the shape of the shirt serves the same “utilitarian” function as any other shirt—to be worn on the body. But the designer could, however, copyright the two-dimensional pattern on that shirt, because this design is generally thought to be “severable” from the functional purpose of the shirt. Courts use the “severability” analysis to determine which aspects of apparel design can be copyrighted. But as highlighted in a recent case, the application of the useful article doctrine can be murky, and courts sometimes struggle with what aspects of clothing design are simply functional, and what copyright law may protect.

On October 31, 2016, the U.S. Supreme Court will hear oral arguments on a copyright dispute over cheerleading uniforms. See Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (6th Circuit 2015); Star Athletica, LLC v. Varsity Brands, Inc., 136 S. Ct. 1823 (2016). In this case, Varsity sued Star and alleged that Star had violated the Copyright Act of 1976 when Star advertised certain two dimensional artwork designs on their cheerleading uniforms. Specifically, the challenged design consisted of two-dimensional stripes, colors, and other ornamentation familiar to cheerleading uniforms. Id. The three-dimensional shape and cut of the uniform was not at issue. The case was originally heard by the District Court for the Western District of Tennessee. During trial, Star argued that Varsity did not have valid copyrights because the designs at issue were “useful articles,” which cannot be copyrighted, and that the designs cannot be separated from the uniforms, which also makes the designs not subject to copyright.

In its decision, the district court ruled that the designs at issue were not severable from the clothing’s function as a cheerleading uniform, and as such copyright did not protect Varsity’s designs. On appeal, the Sixth Circuit vacated the district court judgment in favor of defendant and found that the district court erred in concluding that plaintiff’s cheerleading uniform designs were not copyrightable. The Supreme Court granted certiorari, and will hear oral arguments on October 31.

While a case about cheerleading uniforms may seem trivial, this decision could have major implications and consequences to the copyright protections of apparel designers nationwide. Because the “useful article” doctrine precludes most designers from receiving any sort of copyright for their designs, designers are forced to prove that the creative element or design of the article is separate from the clothing itself. As shown in the case above, the downside to the “separable” test is that it is seemingly subjective, and thus it is difficult for courts across many jurisdictions to create a common standard. As a result, this Supreme Court case can have huge implications, and help create a more standardized approach in applying the useful article test to two-dimensional designs on articles of clothing.

Catherine Carney