The court upheld the US Court of Appeals for the Sixth Circuit’s decision in Star Athletica v Varsity Brands, ruling that the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work.
John DiMatteo, partner at Holwell Shuster & Goldberg, said the decision, which was delivered on 22 March, is a “big step forward for clothing designers”.
“By finding that the design of a cheerleading uniform is separate from the uniform itself—even though when separated still looks like a uniform—is protectable under the Copyright Act, the court greatly expanded an important intellectual property right.”
Jonathan Moskin, partner in the intellectual property practice at Foley & Lardner, added that the decision “raises very interesting questions on how to apply this logic to other designs, particularly given the need to at least ‘imagine’ separability”.
“I am intrigued to think that it could apply to designs such as modern furniture that are often themselves admitted to design museums, which in a very literal way would satisfy [the court’s] test of whether the design can be imagined as a work of art, even if the separability is harder to satisfy.”