Supreme Court – Conceptual Separability Analysis

Traditionally, the principle is: Clothes are un-copyrightable useful works.

In apparel, it is possible to protect an original design with copyright. Then, you can use this design on fabrics by screen printing or embroidering. The design will be protected but the clothe in which the design appear won’t be!

However, there is an exception to that Principle; Ornamental aspects or features can be protected if they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article[1]. This exception is called “The Separability Analysis”. It determines if a garment is copyrightable or not. Unfortunately, it is one, of the most confusing copyright doctrines…

So far, the conceptual Separability analysis has more than 5 different formulations whose application will depend on the type of work analyzed under the copyright law (hats, clothes, shoes or else) but will also depend on the court or circuit in which the case is brought up.

In Regard to that rule, famous Designers purposely added unnecessary ornamentations to the basis function of the object to guaranteed a copyright protection to their creation. It is highly Under stable considering the amount of time and work design creation can consume. It is hard to conceive that this creative work, is banned from receiving a copyright protection such as any other artistic work.

But Things are about to evolve!

A recent case could mark an important change in the Fashion Industry in favor of designers.

On March 1, 2014, the sixth circuit of The United States District Court for the Western District of Tennessee[2] issued a decision that will be reviewed on Halloween, by the Supreme Court.

Two cheerleader uniform companies are opposed on this ongoing dispute that will lead to know if the designs adorning uniforms can be copyrighted or not. It’s the occasion, for the Supreme Court, to unify the Separability Analysis and to provide clearer guidelines in term of copyright protection applied to clothes and other fashion accessories.

The Fashion Law Institute itself has filed an amicus brief in the case along with many fashion designers and influencers to encourage the Supreme Court to reaffirm the result reached by the Sixth Circuit who a five-part test to determine whether or not a particular design is copyrightable.

The five parts test is the following  :

  1. Is the work pictoral or graphic or sculptural? (Yes according to the six circuit)
  2. Is it the design of a useful article? (Yes in this case)
  3. What are the utilitarian aspects of the useful article? (To decorate the Uniforms)
  4. Can I viewer of the Design identifies the pictoral or graphic or sculptural features separately from the utilitarian aspects of the useful article? (Yes)
  5. Is the design feature exist independently of the utilitarian aspects of the useful article (Yes as the designs are “wholly unnecessary to the performance of the garment’s ability to cover the body, permit free movement and wick moisture”)

THEREFORE, the uniforms can be copyrighted.

The approach taken by the six circuit is largely supported in the Fashion Industry who massively encourage the Supreme Court to confirm this result.

Most commonly, the Supreme Court will adopt its own conceptual Separability Test. This new test will, then, be used by all courts.

Whether it would be more difficult or easier to obtain a copyright protection on clothes, it will still be a positive change for the Fashion Industry to clarify and unify the test that each courts will apply when determining if a fashion creation is copyrightable or not.

[1] 17 U.S.C. C $101

[2] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422, at *1 (W.D. Tenn. Mar. 1, 2014), vacated and remanded, 799 F.3d 468 (6th Cir. 2015)

© 2016 Olfa B’Chir