We’ve seen the Cheerleader Case begin to have some positive effect at the Copyright Office for clothing design. The “Cheerleader Case,” you may recall, was Star Athletica, LLC v. Varsity Brands, Inc., a Supreme Court case over the extent to which one uniform manufacturer could stop another from using substantially similar arrangements of blocks, stripes, and chevrons.
SCOTUS reduced the analysis to two steps: (1) Can the applied artistic feature be perceived as a two- or three-dimensional work of art separate from the useful article? (2) Would the artistic feature qualify as a protectable pictorial, graphic, or sculptural work if imagined separately from the useful article?
Last year, the Copyright Office refused Adidas AG’s registration application for two sneaker designs under the Yeezy Boost 350 moniker. After the applicant requested reconsideration, it was refused again. Upon the Second Request for Reconsideration, the Review Board of the U.S. Copyright Office conceded that the sneakers “can be perceived as two- or three-dimensional works of art separate from the useful article, that is, the sneaker” and that “the Works contain a sufficient amount of original and creative two- and three-dimensional authorship for registration.”
Keep this in mind when creating your own designs: should someone infringe your work, then a copyright registration is the best insurance policy you’ve ever bought.