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Is My Clothing Design a Work of Art?

The short answer is: maybe. In a 6 - 2 decision, the U.S. Supreme Court in the case of Star Athletica, L.L.C. v. Varsity Brands, Inc. recently clarified the conditions under which the answer can be yes.

The question the Supreme Court sought to clarify was this, "What is the appropriate test to determine when a useful article (such as clothing) is protectable under Section 101 of the Copyright Act?" That section permits protection for a design of a useful article only to the extent that it incorporates pictorial, graphic or sculptural features that that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

The Supreme Court analyzed Varsity Brands' cheerleading uniforms and found that the arrangement of colors, shapes, stripes and chevrons on the uniforms could be applied in another medium, such as an artist's canvas. On a canvas, the arrangement would be protectable. Also, without those graphic designs, the uniforms could still exist and function as cheerleader's uniforms. As a result, the design was found to be eligible for protection under the Copyright Act.

The key is this: if the design can be perceived as a separate work of art and would qualify as a protectable pictorial, graphic or sculptural work if imagined separately from the clothing, then it is eligible for protection under the Copyright Act. If it cannot be perceived separately, then it is a useful article that is not protectable. That is a subjective test, requiring a case by case analysis that may not always be intuitive. 

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