Below is a report from Law On The Runway’s researcher & legislation expert in Washington D.C., Hilary Jochmans

It is fitting that on the day much of America dons costumes, the US Supreme Court considered a case concerning cheerleading outfits. The case, Star Athletica v. Varsity Brands, was heard by the eight current justices on Halloween. During the one hour allotted for oral argument, seven of the justices bombarded counsel with questions on a range of copyright related issues.

As a member of the US Supreme Court bar, I was fortunate to attend oral arguments for this rare fashion law case. For some, this case is a proxy for a broad grant of copyright protection for fashion in the US. However, cert was granted for a very specific question of copyright, specifically, “what test is appropriate to determine when a feature of a useful article is protectable under Section 101 of the Copyright Act”. Under current law, articles deemed, “useful” such as a dress, do not qualify for copyright protection. This was acknowledged by Justice Breyer who publically stated that for more than a hundred years, “the fashion industry has not enjoyed copyright protection.”

In this case, Varsity Brands, Inc., sued Star Athletica, LLC for copyright infringement of the designs of five cheerleader outfits. The designs in question, patterns of colorful chevrons, had received protection from the US Copyright Office. The question essentially is whether these copyrighted designs can be separated from the dress, a utilitarian item, and retain its copyright.

Courts have used different tests to determine how, and if, a design can be separated from the underlying useful item. The 6th Circuit, from where this case originated, identified 10 possible tests. The Supreme Court is to determine which of these tests, or perhaps a new one, is appropriate.

While some justices waxed poetic about the true meaning of fashion, such as Justice Breyer’s musings that, “the clothes on the hanger do nothing; the clothes on the woman do everything,” conspicuously absent was any discussion of the various actual or theoretical tests.

Parties on both sides of this issue capitalized on the opportunity to weigh in on broad issues of intellectual property protection for fashion design. Over a dozen amicus briefs from academia, practitioners and advocates were submitted to the Court. Included were briefs from Professor Christopher Buccafusco of Cardozo Law School in support of Star Athletica; The Fashion Law Institute, in support of Varsity; and the New York Intellectual Property Law Association (NYIPLA), in support of neither party but vocal on intellectual property issues. A brief was also submitted from Public Knowledge who represented a diverse group of signatories, including the International Costumers Guild, the Open Source Hardware Association, Shapeways (the 3D printing company) and the American Libraries Association, among others. Their brief was in support of Star Athletica.

Historically in the US, fashion design has not been afforded copyright protection. Limited intellectual property protection is available in the form of trademarks and designs patents. Congress has considered expanding copyright to include fashion, similar to the regime that exists in Europe. The most recent attempt was in 2012. However, while both the House and the Senate considered measures, ultimately Congress did not pass legislation. The Court is expected to announce their decision in this case before the end of the term in June. It will be interesting to see if this judicial action will spur Congress to once again turn a sartorial eye to copyright. Stay tuned.