Art that Stands Alone

On March 22, 2017, the Supreme Court handed down a decision about a potentially significant copyright issue. In the Varsity Brands case the court said that various designs consisting of things like stripes and chevrons on a cheerleading uniform were eligible for copyright protection. Useful articles like clothing aren’t subject to copyright protection – they are more properly covered by patents. However, in the Varsity situation, even though the cheerleading uniforms themselves were functional items, the graphic designs that were applied to the uniforms were capable of standing alone as separate creative works.

The justices observed that the chevrons and stripes could, for instance, be duplicated on a canvas without regard to any functionality. In that medium, the designs would qualify for copyright protection as graphic works. So, the court reasoned, why wouldn’t they be protected when applied to the fabric of a uniform when their only contribution to the uniform is aesthetic, rather than functional? This “separabilty” test seems to be the cornerstone of how issues related to the blending of functional and design features will be decided for copyright purposes.

This decision will certainly arm the fashion and garment industry with additional means to protect their products and pursue sellers of knock-off items. Its impact would also seem to have broad implications for many other areas of design. It’s entirely conceivable that purely artistic embellishments of functional items like furniture, lighting, packaging, and many consumer goods may now be safeguarded by copyright. This new shield would, with the Varsity Brands decision now in place, augment the patent and trademark protection that already exists.