If you have read my book or retain me for your fashion business, then you know that I am a big proponent of copyright for some fashion designs beyond textile patterns.
You may also know that I believe the 2012 prom dress case – a 2nd Circuit decision in Jovani Fashion, Ltd. v. Fiesta Fashions – was misguided and glossed over a significant legal error by the lower court. To paraphrase, that court affirmed that prom dresses are more like Halloween costumes than wedding gowns and, therefore, their sequins, beads, ribbons, and tulles – including the arrangement of those elements – are mere extensions of “useful articles” undeserving of any protection. The appellate forum also upheld the lower court’s ruling that elements on a garment must be copyrightable, separate and apart from the underlying dress or not at all.
This was an especially disappointing turn of events given the seeming direction of courts leading up to Jovani. Earlier cases had acknowledged infringement when a business reproduced the arrangement of lace and embroidered roses identical to a competitor’s camisole.
Often called “thin copyright,” this means that certain items enjoy protection only from exact copies. Jovaniwas an unfortunate departure from this reasonable path.
An April decision, however, may serve as a valuable course correction.
In Varsity Brands, Inc v. Star Athletica, LLC, the 6thCircuit asked whether cheerleading uniforms are truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks. Asserting the Copyright Act’s definition of “useful article” as “an article having an intrinsic utilitarian function that is not merely to . . . convey information,” it states that stripes, chevrons, zigzags, and color-blocking, generally speaking, are not mere extensions of a uniform’s usefulness, but their arrangement is separable as its own copyrightable work.
The 6th Circuit vacated the lower court’s judgment, remanding the question of whether Varsity Brands’ specific arrangement of the stripes, chevrons, etc. is original enough to qualify for copyright protection. I hope to report back positive news for my fashion clients once the lower court reconsiders its initial decision.
