How Will Last Week's Supreme Court Decision In Star Athletica v. Varsity Brands Affect The Sports Apparel Industry?

In my latest New York State Bar Association Entertainment, Arts and Sports Law blog post, I analyzed the Supreme Court's holding that "an artistic feature of a design of a useful article" - in this case cheerleader uniforms - "is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately form the useful article."

This reinforces what the sports apparel industry has always known in terms of copyright protection for original designs imprinted on apparel.

While U.S. law does not protect apparel designs themselves (i.e., the cut, contour and shape of a garment) because they are deemed utilitarian or functional - which remains a hotly contested issue pitting couture fashion designers against consumer advocates - original imprints and other design elements that can be "separated" from a garment and stand alone have been protected by copyright for many years. Indeed, we see scores of copyright infringement cases filed annually by plaintiffs owning registered fabric designs that are used on garments.

The real question is whether the Supreme Court's broad view of design separability may embolden apparel and fabric plaintiffs...