August 31, 2015
Recently, the Sixth Circuit Court of Appeals (“Sixth Circuit”) in Varsity Brands, Inc. v. Star Athletica, LLC, decided that clothing designs (in this case, a cheerleading uniform) can be protected by copyright under the United States Copyright Act, which limits the protection of “useful articles.” The Sixth Circuit’s decision is important because this may lead to significant change in the copyright protection of clothing design. The Sixth Circuit noted that courts “have struggled mightily” to determine whether designs on useful articles are copyrightable when those features cannot be removed physically from the useful article.

Judge McKeague commented in dissent that the law in the area of clothing design “is a mess” and called for reform, stating that “[i]t is apparent that either Congress or the Supreme Court (or both) must clarify copyright law with respect to garment design… [and] until we get much needed clarification, courts will continue to struggle and the business world will continue to be handicapped by the uncertainty of the law.” This decision increases the likelihood that reform will soon come.

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