On Wednesday the Supreme Court ruled in the Star Athletica v. Varsity Brands case, which centered on the issue of copyrighting the chevron, stripe, and other patterns of cheerleading uniforms. To laypeople, this was the case that gave the world the justices’ unforgettable banter about fashion and style. “The clothes on the hanger do nothing. The clothes on the woman do everything. And that is, I think, what fashion is about,” said Justice Stephen Breyerduring an argument with Justice Elena Kagan, who responded, “That’s so romantic.” But, to those inside the fashion world, this was a landmark that has potential to resonate in the industry for years to come. Not only is the suit the first time the Supreme Court has ever heard a case centering on apparel design copyrights, but the 6–2 ruling in favor of Varsity Brands allows elements of a garment’s design to be protected by copyright law. In the Court’s syllabus, it declares: “The Copyright Act of 1976 makes ‘pictorial, graphic, or sculptural features’ of the ‘design of a useful article’ eligible for copyright protection as artistic works if those features ‘can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.’ ”
To help translate the government legalese, Vogue spoke with Joseph Mueller, a lawyer at Dewey Pegno & Kramarsky LLP, a litigation boutique that regularly handles copyright disputes. Mueller wrote, “The Court decided that copyright law can sometimes protect aesthetic elements of designs for cheerleader uniforms. This sounds straightforward, but a little background shows why this case was complicated. Copyright law protects certain types of artistic and creative expressions. On the other end of the intellectual-property spectrum is patent law, which protects innovations based on their usefulness and novelty. This case dealt with a tricky middle ground: Copyright law can protect aesthetic features of a ‘design for a useful article’—but only if they are distinct enough from the article’s useful or functional aspect.”
But how to define what’s useful and what’s not in a garment? Would you call Craig Green’s many ties and knots functional or decorative? What about Julien Dossena’s linked squares at Paco Rabanne? “There is tons of gray area,” Mueller wrote. “The Court articulated a rule that sounds neat and tidy, but we won’t know precisely how much protection it actually gives designers until other courts apply these principles to other cases.”
In short, this ruling isn’t a blanket statement protecting all designers from knockoffs and copying, but rather it opens the door for making the case that certain parts of design can be protected by copyright. That’s important, especially considering that Congress has discussed expanding copyright protections for fashion designers but has not yet made it into law.
Still, the impact this decision could have on high fashion is great. Not only does it provide luxury houses some ground to defend themselves against fast fashion retailers who churn out replicas of runway designs before the originals hit stores, but it also has the potential to discourage designers from borrowing motifs from their peers or from the past. “Designers have relied mostly on trademarks to protect themselves, but now they can argue that more conceptual, less obvious aspects of their designs should be protected by copyright too,” wrote Mueller. “As with many Supreme Court opinions, it will take some time to know what the practical effect of this decision will be. But there’s no question that it’s a big shift. You can expect to see designers relying on copyright law more often to challenge what they perceive to be knock-offs.”