Hi. Hello. You see the title.
First of all, what exactly does a copyright cover? Copyrights are governed by Title 17 of the United States Code. It’s a bunch of legal jargon that deep dives into what a copyright is, how long it lasts, infringement, DMCA (which you are probably most familiar with the example of when someone mentions a “copyright strike” on YouTube) and a whole bunch of other stuff. If you want to learn a bit more about how copyrights work, listen to my girl Grace’s podcast, The Label Law. Better yet, listen to all the episodes.
While the actual statutes are important, case law (in my opinion) is even more important. Cases show how the courts interpret the laws that are set in place. Even more important are the cases that reach the Supreme Court–the highest law of the land.
Enter Star Athletica.
Star Athletica is a big deal for a couple of reasons. The courts have decided that clothing basically serves one purpose–to keep you from being naked. It’s utilitarian. The court does not see clothing as art. A lot of us would beg to differ, but the most important takeaway is this:
Clothing items as a whole are not copyrightable.
According to Section 101 of The Copyright Act, a useful article is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘useful article’.” Yes, I know, that barely makes sense. It basically means that useful articles are.. well.. useful. Think of a plain white t-shirt. A simple pair of jeans with no flashy designs. They are considered items to used to cover your body. They don’t have any artistic elements to them.
With that out of the way, let’s dive into some key parts of the case.
“The lower court’s opinion states that a white cheerleading outfit is similarly useful as the designs the petitioner has copyrights for. The Supreme Court disagrees, stating that the issue at hand is not about the entire garment as a whole, but the art which could be extracted from the garment (or useful article) and displayed as a separate artistic element….We hold that an artistic feature of the design of a useful article 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 from the useful article.”
This quote details the two-part test on whether a design is copyrightable. The issue falls on items that may be extremely unique, but the “essential being” of the item is removed when the artistic element is removed.
Personally, I agree more with some of the dissenting opinion. Justice Breyer stated that “Van Gogh’s painting of a pair of old shoes, though beautifully executed and copyrightable as a painting, would not qualify for a shoe design copyright.” Totally makes sense, right? Somebody could actually create a pair of shoes that looks exactly like the shoes in the painting and *likely* not run into any legal issues–it’s a useful article now. On the contrary, it would’ve been an issue if they took the image of the shoe and put it on a t-shirt, because whoever owns the copyright following his death did not give the person permission to replicate the art in a pictorial/graphic manner.
(Although, this was a very interesting example to use as van Gogh died in 1890. American copyright law states that “all works published in the United States before 1924 are in the public domain.” So.. van Gogh’s art would be considered public domain at this point. He also wasn’t American and intellectual property laws vary widely worldwide.)
Justice Breyer also notes that sometimes items have an artistic element that, if separated from the object as part of the two-factor test, removes the essential being of the object.
“…each design is not conceptually separable from the physical useful object.”
If an artistic element is integrated in the design (Justice Breyer used an example of a lamp with a base shaped like a cat), and does not simply sit on top of the object (think of a graphic printed on a t-shirt), does it deserve no protection at all?
“To repeat: A separable design feature must be “capable of existing independently” of the useful article as a separate artistic work that is not itself the useful article.
If the claimed feature could be extracted without replicating the useful article of which it is a part, and the result would be a copyrightable artistic work standing alone, then there is a separable design. But if extracting the claimed features would necessarily bring along the underlying useful article, the design is not separable from the useful article.
In many or most cases, to decide whether a design or artistic feature of a useful article is conceptually separate from the article itself, it is enough to imagine the feature on its own and ask, “Have I created a picture of a (useful part of a) useful article?” If so, the design is not separable from the useful article. If not, it is.”
You can sketch out a design, and that itself is protected under copyright, but once you physically create that design into an item of clothing, it most likely isn’t covered under copyright. Pretty much everything is up to interpretation.
Even with the decision of this case, fashion remains widely unprotected. The Star Athletica ruling is quite ambiguous and leaves a lot of room for future precedents to take over. Unfortunately, your crop top with the interesting tie on it probably won’t be covered under copyright law. Design patents are an option, but the process is longer and more expensive.
So, in the meantime–stop telling designers to copyright their designs. It’s simply not that easy.