Sixth Circuit case covers conceptual separability over the copyrightability of cheerleading uniform designs.
On August 19, 2015, the U.S. Court of Appeals for the Sixth Circuit ruled that decorative cheerleading uniform designs are copyrightable.
Specifically, the majority concluded that the stripes, chevrons, zigzags, and color block designs on the uniform in question are protectable because those visual elements are conceptually separable from the “utilitarian aspects” of the uniforms.
Suggested: Fabric copyright fashion law case
But this fashion law saga does not end there. The Supreme Court will review this issue.
The decision may determine if many kinds of fashion items can get copyright protection.
Does fashion deserve copyright design protection?
The Copyright Act seems simple. It provides that “useful articles — those “having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” — receive protection “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
This rule that “useful items” cannot be protected helps prevent exclusive rights to items.
But what about designs on useful objects?
Let’s consider fashion law rights of cheerleaders’ uniforms.
Fabric itself is a necessary part of the uniform’s useful function. Logos can receive intellectual property protection via trademark law. Logos can also receive copyright protection because they are considered physically and conceptually separable from the uniform.
Courts have adopted various different approaches to the conceptual separability doctrine.
To formulate their own test, the Sixth Circuit surveyed nine different approaches that courts have taken concerning whether a piece of apparel is copyrightable.
Some courts ask whether artistic features are “objectively necessary” to the performance of the useful function, or if the useful function could “stand alone” without the design. Others ask if the the design elements are “primary” to “subsidiary” utilitarian elements. An economic approach asks whether the object would be marketable on the basis of the design even if it lacked any utilitarian function (think clothing that would be collected and photographed).
The Sixth Circuit court reasoned that
“The Copyright Act protects fabric designs, but not dress designs. Because we believe that graphic features of Varsity’s cheerleading-uniform designs are more like fabric design than dress design, we hold that they are protectable subject matter under the Copyright Act.”
I look forward to the Supreme Court providing clarity on conceptual separability. I hope the standard continues to allow copyright protection in some aspects of fashion items. It would be a shame if, for example, fabric designs lose copyright protection.
But would a plain cheer uniform still cause cheer?
Although a cheerleader in a muted plain outfit may not seem as exciting and sweet as a cheerleader in an ostentatious uniform, utilitarian function in copyright covers basic design necessity over aesthetics.
The Supreme Court granting this review doesn’t mean it disagreed with the Sixth Circuit’s rule. It means the Supreme Court wants to resolve the split existing between the different circuit courts.
The Supreme Court must consider whether pictorial, graphic, or sculptural design elements are wholly unnecessary to the performance of the uniform’s ability to serve its utilitarian function, and are therefore conceptually separable.