By: Gillian Lee
Volume X – Issue I – Fall 2024
I. BACKGROUND AND INTRODUCTION
Fashion permeates through everyone’s lives beyond simply the clothes people wear. Fashion is a mode of self-expression and cultural movements, and is engrained in daily media. Even a picture of an individual can create an entire fashion discourse. Fashion can be used as a tool for social activism, such as printing words on clothing to spark critical discourse, or using styles to challenge gender roles. Fashion is also a significant part of the economy. In 2024, the apparel market generated $354.7 billion in the United States, and is projected to grow annually by 1.86%. [1] Fashion undoubtedly has different meanings and values to each individual–to people working in the fashion industry, fashion is intrinsic to their lives. Designers create new designs, spurring trends and new forms of expression.
One of the greatest problems facing designers today is the issue of intellectual property infringement, particularly as it relates to the copying of designs. The copying of designs is especially relevant today as it relates to fast fashion companies who turn out countless clothes and designs constantly to keep up with trends. These companies make clothes at low price points, often letting consumers buy ripoffs of popular designs for cheap. This has increased the environmental damage the fashion industry has caused, spurring millions of tons of textile waste, carbon dioxide emissions, chemical pollution, and more. [2] It is cheaper, easier, and more widespread to be copying designs now. This relates to fast fashion and other areas; scholars Rasutiala and Springman note that “digital photography, digital design platforms, the Internet, global outsourcing of manufacture, more flexible manufacturing technologies, and lower textile tariffs have significantly accelerated the pace of copying.” [3] These mediums facilitate a wider space for fast fashion to occur.
It is also important to note that there is a difference between referencing or gleaning inspiration from a design, and close-copying a design–a distinction scholars Hemphill and Suk focused on, and determined that the threat to intellectual property comes from the practice of close-copying (Hemphill and Suk). [4] Furthermore, copying can increase the rate of innovation in fashion but, in doing so, reduce the diversity in fashion as designs get copied over and over, typically by designers or brands who have already made a name or profit for themselves.
The copying of small, independent designers can be particularly worrisome since they do not have the brand recognition or financial backing that larger designers have. In fact, in 2021, the American Intellectual Property Law Association reported that when the amount at stake is less than $1 million in copyright infringement suits in general, the median copyright litigation cost is $350,000. [5] Through these high legal costs, there are financial disincentivizes for small, independent designers to pursue legal action and decreases the likelihood their claims will gain traction. However, it is overall unclear whether smaller companies, fast fashion companies, or luxury brands are most likely to be sued because small designers have the least resources, fast fashion retailers are usually the ones doing the copying, and luxury brands are more likely to be concerned with trademark infringement than copyright infringement because trademarks are more likely to project luxury brands’ image. [6] Contrasting with other industry arenas, fashion typically has few copyright protections. It thus stifles creative innovation in the industry and results in a mass copying of similar designs and concepts, such as within fast fashion. Despite a limited number of cases, there are some legal disputes that give insight into the copyright issues of the fashion industry.
II. PRECEDENT
Article I Section 8, Clause 8 of the U.S. Constitution, the Intellectual Property Clause, empowers federal copyright and patent systems: “The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [7] This laid the foundation for future copyright law, and as it relates to this article, “useful Arts” made it possible for fashion to be included for possible copyright purview.
Mazer v. Stein (1954), a case involving the design of lamps, established the “useful article doctrine” and the principle of separability where “useful” items are not themselves copyrightable, but the distinct artistic features in or on such useful items could be copyrightable. [8]
This was later codified in Section 101 of Copyright Act of 1976, 17 U.S.C. § 101, which stated that “the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work [eligible for protection] only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” [9] 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.” [10] Useful articles must have a utilitarian function, thus holding practical use.
17 U.S.C. § 102 covers the general copyright subject matter, providing that “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [11] Thus, works of authorship need to be in a “tangible medium of expression,” requiring that works be present in some physical form that verifies its existence (e.g., written on paper, saved digitally, etc.) and able to be generally understood through visual or audio means. The section specifies categories for “original works of authorship,” including "pictorial, graphic, or sculptural work.”
While the separability requirement in 17 U.S.C. § 101 became ingrained in law, there emerged a lack of clear standards in establishing this separability and thus difficulty for businesses to meet this standard. For instance, in Whimsicality, Inc. v. Rubie’s Costume Co. (1989), the court noted that “clothes are particularly unlikely to meet [the test of separability]” because “the very decorative elements that stand out [are] intrinsic to the decorative function of the clothing.” [12] This lack of clarity in the standards for copyright protection set up the context for the Supreme Court to take on Star Athletica, L.L.C. v. Varsity Brands, Inc (2017).
III. CASE AND DECISION
In 2011, Varsity Brands brought suit against Star Athletica for copyright infringement over five of its cheerleading uniforms. Respondents Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc., are leading designers, makers, and sellers of athletic apparel, especially cheerleading uniforms. At the time of the case, Varsity Brands had obtained or acquired over 200 U.S. copyright registrations over their two-dimensional designs, including primarily “combinations, positionings, and arrangements of elements” that include “chevrons... lines, curves, stripes, angles, diagonals, inverted [chevrons], coloring, and shapes.” [13] The District Court granted summary judgment for Star, holding that the designs were not protectable works because they served a useful, or "utilitarian," function as cheerleading uniforms and could then not pass the principle of separability. Varsity then appealed to the Sixth Circuit Court of Appeals, which reversed and remanded the district court’s decision. The appellate court reasoned that the uniform designs were “separable identifiable” since the designs “and a blank cheering uniform can appear ‘side-by-side–one as a graphic design, and one as a cheerleading uniform.” The court also held that the designs were "capable of existing independently” as the designs could appear on other surfaces besides cheerleading uniforms such as different clothing items or as framed art. [14] Following the Sixth Circuit decision, Star appealed to the Supreme Court.
Star Athletica, L.L.C. v. Varsity Brands, Inc (2017) went before the Supreme Court in 2016 to determine what the appropriate test is for deciding what “useful items” are eligible for copyright under the Copyright Act. Copyright laws had historically not protected “useful items,” but rather only design elements outside the scope of useability could receive copyright protection.
The Star court ruled in favor of Varsity Brands in a 6-2 decision. The court held that “a feature incorporated into the design of a useful article is eligible for copyright protection only 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 fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.” [15] This established a new two-factor test for the [17] U.S.C. § 101 separability requirement. The second requirement was more difficult to satisfy, as Justice Thomas noted in the opinion, “... the feature must be able to exist as its own pictorial, graphic, or sculptural work as defined in § 101 once it is imagined apart from the useful article.” [16] Thus, the work must be able to be its own work of art if imaginatively removed from the surface of the medium–in this case, cheerleading uniforms. It is thus important to recognize that only the designs of the uniforms were potentially copyrightable, not the functional aspects of the cheerleading uniforms like the “shape, cut, and physical dimensions,” as also noted in the opinion. [17]
Justice Thomas wrote the opinion of the court, and Justice Breyer wrote the dissent. In the dissent, Breyer took issue with the claim that the cheerleading designs were separable from the “useful item” of the physical cheerleading uniforms as when they were theoretically taken off of the uniform material, they retained the shape of a typical cheerleading uniform. However, the court determined that this did not prevent the uniform's compliance with the second factor in the two-prong test.
IV. STAR IMPLICATIONS
In the post-Star world, there has been disagreement over whether the decision was beneficial or hurtful to the fashion world, and whether it would even change much in general. There is an argument that many designs have three-dimensional features that would fall outside the purview of Star copyright protection. To an extent, Star has strengthened the ability for designers to make legal claims for copyright infringement. However, it is inconclusive whether the number of copyright legal claims have increased since Star. The Copyright Office’s annual reports do not break down their files into further subcategories after the category of pictorial, graphic, or cultural (PGS) works that would specify whether a claim relates to fashion (Stanford). Thus, it is difficult to assess the aftermath of Star. There was an approximate 9.4% increase in the number of registered works between 2016 and 2018, but the total number of registered PGS works dropped in 2019 and 2020. However, the total number of copyright registrations also decreased during this time. It would be useful if the PGS category had further breakdowns. [18]
Without the Copyright Office’s data, it is useful to look at the specific cases that have arisen since Star. Multiple significant fashion copyright cases have been initiated. The subsequent cases Triangl Group Ltd. v. Jiangmen City Xinhui District Lingzhi Garment Co. (2017) and Silvertop Associates, Inc. v. Kangaroo Manufacturing, Inc. (2019) provide explicit examples of the post-Star legal arena. [19] Triangl Group Ltd. concerned the design of swimsuits, and the court asserted that the black trimmed lines forming a “T” shape on swimsuits could be perceived separate from the useful item of a swimsuit and could exist on another tangible medium. [20] Silvertop Associations, Inc. held that a “banana costume's combination of colors, lines, shape, and length (i.e., its artistic features) are both separable and capable of independent existence, and thus are copyrightable.” [21] Fashion law has transitioned since Star, and there is a possible signal towards a rise in brands pursuing copyright litigation, plausibly because they now have a more rigid standard to understand whether their designs can be separate from their items. This potential increase has led the copyright community to express concern that Star has opened the possibility of overprotection of designs. [22]
One considerable alternative to legal suits is social media shaming, where people can pursue this extralegal enforcement method to gain traction and supporters when they are victim to copying. As Lisa Wang noted in her 2023 article, uploading a post to social media is quick, easy, and free. In this sense, social media shaming is “powerfully democratizing,” since it allows “entities with very little financial power [to] shape public opinion.” [23] Social media is also more likely to have a quicker resolution than a lawsuit. On the other hand, the difficulty with social media shaming is that it is not guaranteed to work and people have no obligation to respond to social media claims, as opposed to a legal claim. There are also many different factors into whether a social media post will gain traction, including the amount of fame one has or the individual’s race. People are also less likely to receive monetary compensation with social media shaming and can be emotionally taxing for the designer as they become consumed in defending themselves.
Similarly, the issue of copying in fashion brings up equity issues. Women, people of color, and lower earning designers are more likely to be subject to copying piracy. [24] Thus, it is even more important to attempt to solve the issues of copyright in fashion since copying can exacerbate existing societal power hierarchies and inequalities. It remains unclear whether the increase in copyright cases since Star will benefit small or minority-owned brands by advancing their chances at successful litigation suits or harm them by allowing large brands to leverage their economic power even further.
The Star decision may be one step closer to remedy the issues that arise for copyright in fashion law, but there will never be a perfect solution. Crafting a test that will both deter unethical copying and minimize equity issues is likely unachievable. Over time, with more data, we can better assess Star’s effectiveness in the fashion industry and identify what new rules might be needed. It will also be interesting to see what extralegal methods prove to be successful.
Endnotes
[1] “Apparel - United States: Statista Market Forecast.” Statista, www.statista.com/outlook/cmo/apparel/united-states. Accessed 17 Oct. 2024.
[2] Niinimäki, K., Peters, G., Dahlbo, H. et al., “The environmental price of fast fashion,” Nat Rev Earth Environ 1, 189–200 (2020), https://doi.org/10.1038/s43017-020-0039-9.
[3] Kal Raustiala and Christopher Jon Springmanfaster, “Fashion: The Piracy Paradox and Its Perils,” Cardozo Arts & Entertainment, Vol. 39.2, 1714-15.
[4] Scott Hemphill and Jeannie Suk, “The Law, Culture, and Economics of Fashion,” 61 STAN. L. REV. 1147, 1148, 2009, 1160.
[5] Lisa Wang, “The Copying of Independent Fashion Designers: Perils and Potential Remedies in a Post–Star Athletica World,” Stanford Law Review, April 2023, 1012.
[6] Lisa Wang, 1017.
[7] U.S. Const. art. 1, § 8, cl. 8.
[8] Mazer v. Stein, 347 U.S. 201 (1954), https://supreme.justia.com/cases/federal/us/347/201/.
[9] Section 101 of Copyright Act of 1976, 17 U.S.C. § 101.
[10] Section 101 of Copyright Act of 1976, 17 U.S.C. § 101.
[11] Section 102 of Copyright Act of 1976, 17 U.S.C. § 102.
[12] Whimsicality, Inc. v. Rubie’s Costume Co., 721 F. Supp. 1566 (1989), https://law.justia.com/cases/federal/district-courts/FSupp/721/1566/1419737/.
[13] Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. __ (2017), https://supreme.justia.com/cases/federal/us/580/15-866/#tab-opinion-3706586, 2.
[14] Star Athletica, LLC v. Varsity Brands, Inc., 2-3.
[15] Star Athletica, LLC v. Varsity Brands, Inc., 1-2.
[16] Star Athletica, LLC v. Varsity Brands, Inc., 7.
[17] Star Athletica, LLC v. Varsity Brands, Inc., 12.
[18] Lisa Wang, 1007.
[19] Lisa Wang, 1007.
[20] Angelo Marchesini, “Thin Separability: An Answer to Star Athletica,” Seattle University Law Review, Vol. 43:1087, https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?params=/context/sulr/article/2668/&path_info=9_Marchesini__1087_1112.pdf, 1096.
[21] Silvertop Associates Inc. v. Kangaroo Manufacturing Inc., No. 18-2266 (3d Cir. 2019), https://law.justia.com/cases/federal/appellate-courts/ca3/18-2266/18-2266-2019-08-01.html, 12.
[22] Angelo Marchesini, 1102.
[23] Lisa Wang, 1019.
[24] Lisa Wang, 983.