Mark Edward Blankenship Jr.[1]
Sports, music, and fashion have always seemed to complement one another. The Converse All Star Chuck Taylor, which initially started off as a basketball shoe, have been become a fashion piece and classic shoe for rock-stars.[2] Basketball team jerseys, varsity jackets, and other sports sneaker brands like Adidas and Air Jordan have been part of hip-hop fashion for many years as well.[3] Today, sporty apparel is still in style,[4] and just like the music that one listens to or creates, the clothes one wears can sometimes be a form of artistic expression.[5]
Yet for years, fashion had not been perceived as a form of artistic expression, compared to literary, pictorial, musical, dramatic, graphic, and sculptural works.[6] Technically, useful articles are not protected by copyright law, since innovations based on usefulness and novelty are protected by patent law.[7] By contrast, pictorial, graphic, or sculptural features of the “design of a useful article” are eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[8] This part of the Copyright Act of 1976 was constructed in light of Mazer v. Stein,[9] and it is what the Supreme Court referred to two years ago in Star Athletica, LLC v. Varsity Brands, Inc. in creating a simplified textualist analysis of the separability of artistic designs embodied in useful articles.[10]
Appendix to Opinion of the Court
Petitioner, Star Athletica, who was in the business of clothing and accessory design for athletics was sued by Respondent, a competitor in the same business, for violating their copyright incorporating similar design aspects into their cheerleading uniforms, such as lines, chevrons, colors, and shapes.[11] Star Athletica claimed that the aesthetic features of Varsity Brands’ designs were integral to the construction of the cheerleading uniforms themselves.[12] Initially the Supreme Court struggled with the utilitarian aspects of clothing designs in making the human body more appealing. As Justice Kagan emphasized, these designs “follow the figure of the human body essentially”, and distinguish between just a conceptual design of stripes, zig-zags, and chevrons and one “that is put on something that looks like a particular piece of apparel that is meant to fit onto a human body in a particular way.”[13] Yet this could be said about any athletic uniform, even ornate ones from the Dallas Stars or the Atlanta Hawks.[14] Furthermore, the pending outcome of Star Athletica was keeping the fashion industry on its heels since it would also effect the copyrightability of fashion apparel designs and the potential unrestricted access given to large fashion companies like Forever 21, H&M, and Urban Outfitters.[15]
Dallas Stars 
Atlanta Hawks
Eventually, the Supreme 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. This became known as the “conceptual separability” standard, and it is currently the tenth different approach to separability.[16]
It is important to note that the Court did not address whether the designs were sufficiently original to be copyrightable.[17] Justice Ginsburg, however, did mention in her concurrence that Feist Publications, Inc. v. Rural Telephone Service Co. sets a low standard for originality in the context of factual compilations.[18] This could imply that a combination of colors and common geometric shapes would fall under this standard as well.[19] But the Court did not consider other factors either, such as the merger doctrine, scenes a faire, and the exclusion of systems, processes, and methods of operation.[20] These doctrines could also apply to athletic uniforms, such as the ones exemplified below.
Since Star Athletica, other copyright lawsuits involving useful articles and sports apparel and fashion have been brought. In 2017, Puma filed suit against Forever 21 for infringing upon the designs of two soccer sandals and one pair of sneakers.[21] That suit was just settled last year.[22] In addition, Jordan Outdoor Enterprises (known for its Realtree collection) filed suit against Kanye West for taking their copyright-protected camouflage prints for use in his Yeezy fashion collection. Although Lebron James’ fashion company UNKNWN was included as a party to the suit, they were eventually dismissed.[23] This case could get even more interesting, considering that the Supreme Court in Star Athletica debated as to whether camouflage patterns could be copyrightable.[24] Thus as of now, it seems inevitable as to how much litigation involving copyright claims may arise in the fashion industry.[25]
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[1] Mark Edward Blankenship Jr. is a J.D. Candidate at The University of Kentucky of Law (2019). He is the Operations Manager for Volume 107 of the Kentucky Law Journal, and he is the Vice-President of the UK Sports & Entertainment Law Society. Prior to attending law school, he graduated magna cum laude at Georgia Southern University B.A. in Music.
[2] The History of the Converse All Star “Chuck Taylor” Basketball Shoe, Cʜᴜᴄᴋ Cᴏɴɴᴇᴄᴛɪᴏɴ , http://www.chucksconnection.com/history1.html (last visited Jan. 22, 2019); Brionne Frazier, Converse History: The Story Behind the Iconic Chuck Taylors, Thought Co. (Dec. 3, 2018), https://www.thoughtco.com/converse-history-chuck-taylors-4176372.
[3] Ty’rique Sims, The Connection Between Sports And Hip-Hop, Odyssey (May 17, 2016), https://www.theodysseyonline.com/connection-between-sports-hip-hop; Samantha Cabrera, How Has Hip Hop Influenced Fashion?, LEAFtv, https://www.leaf.tv/articles/how-has-hip-hop-influenced-fashion/ (last visited Jan. 23, 2019); Michael Saponara, Drake Is Selling Customizable ‘Scorpion’ Tour Jackets, Bɪʟʟʙᴏᴀʀᴅ (July 2, 2018), https://www.billboard.com/articles/columns/hip-hop/8463755/drake-scorpion-tour-jackets; Tom Banham, The Best-Dressed Men In Hip-Hop, Fashionbeans (Dec. 13, 2018), https://www.fashionbeans.com/article/best-dressed-men-in-hip-hop/; Daniel Riding, AW13 Trend: Varsity Jackets, Mᴇɴs Fᴀsʜɪᴏɴ Mᴀɢ. (Sept. 10, 2013), http://www.mensfashionmagazine.com/wardrobe-essentials-varsity-jackets.
[4] See Trends IRL: How to Get Sporty For Fall, Elle (Sept 15, 2018), https://www.elle.com/fashion/personal-style/a22998757/varsity-trend-fall-2018/; Ellen Hoffman, 10 Sporty, Street-Style Looks To Try Outside The Gym, Refinery29 (Apr. 21, 2014, 9:00 PM), https://www.refinery29.com/en-us/sporty-style.
[5] See Elise Ruff, If the Shoe Fits: The Effects of a Uniform Copyright Design Test On Local Fashion Designers, 17 J. Mᴀʀsʜᴀʟʟ Rᴇᴠ. Iɴᴛᴇʟʟ. Pʀᴏᴘ. L. 262, 263, 277 (2017); Kristy Diesner, Useful Article or Creative Design: Varsity Brands, Inc. v. Star Athletica, LLC, 27 DᴇPᴀᴜʟ J. Aʀᴛ Tᴇᴄʜ. & Iɴᴛᴇʟʟ. Pʀᴏᴘ. L. 91, 91 (2016).
[6] Ruff, supra note 5, at 264–65.
[7] See 17 U.S.C. § 101; Steff Yotka, What the Supreme Court’s First Ruling on Fashion Copyrights Means for the Runway, Vogue (Mar. 23, 2017, 4:42 PM), https://www.vogue.com/article/supreme-court-star-athletica-varsity-brands-ruling-fashion-industry.
[8] 17 U.S.C. § 101 (emphasis added).
[9] 347 U.S. 201 (1954). See generally Charles E. Colman, The History and Doctrine of American Copyright Protection for Fashion Design: Managing Mazer, 7 Hᴀʀᴠ. J. ᴏғ Sᴘᴏʀᴛs & Eɴᴛ. Lᴀᴡ 151 (2016); Jacqueline Lefebvre, The Need for “Supreme” Clarity: Clothing, Copyright, and Conceptual Separability, 27 Fᴏʀᴅʜᴀᴍ Iɴᴛᴇʟʟ. Pʀᴏᴘ. Mᴇᴅɪᴀ & Eɴᴛ. L. J. 143, 149–54 (2016); Lili Levi, The New Separability, 20 Vᴀɴᴅ. J. Eɴᴛ. & Tᴇᴄʜ. L. 709, 725–40.
[10] The Federalist Society, Star Athletica: One Year Later, YᴏᴜTᴜʙᴇ (Mar. 23, 2018), https://www.youtube.com/watch?v=BP41JX8xU2o.; Yotka, supra note 7. See generally Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).
[11] Star Athletica, LLC, 137 S. Ct. at 1007–08.
[12] The Federalist Society, supra note 10.
[13] Id.; Oral Argument Transcript at 39, Star Athletica LLC, v. Varsity Brands, Inc., No. 15-866 (Oct. 30, 2017).
[14] See e.g. NYU School of Law, Professor Jeanne Fromer on the Potential Consumer Implications of the Star Athletica Case, YᴏᴜTᴜʙᴇ (Oct. 31, 2016), https://www.youtube.com/watch?v=7wX2xQmCN7c (stating that this case is not just about cheerleading uniforms, rather it is about all uniforms or fashion designs).
[15] Id.; Ruff, supra note 5, at 263–64; Yotka, supra note 7; Diesner, supra note 5, at 112; see also Lefebvre, supra note 9, at 145 (stating that such a lack of intellectual property protection in fashion design could lead to an array of counterfeiting, much cheaper costs, and the loss of sales and market share).
[16] Star Athletica, LLC, 137 S. Ct. at 1016; see also Supreme Court Sounds Off on Copyright in Cheerleading Uniform, Tʜᴇ Fᴀsʜɪᴏɴ L. (Mar. 22, 2017), http://www.thefashionlaw.com/home/supreme-court-says-cheerleader-uniform-is-protectable-by-copyright-law. See generally Ruff, supra note 5, at 270–74; Lefebvre, supra note 9, at 179.
[17] Star Athletica, LLC, 137 S. Ct. at 1012 n.1; The Federalist Society, Star Athletica v. Varsity Brands (The Cheerleading Uniform Case), YouTube (Oct. 27, 2016), https://www.youtube.com/watch?v=XwtoIF-ktjQ;
[18] Star Athletica, LLC, 137 S. Ct. at 1018 n.2 (Ginsburg, J., concurring in the judgment); Levi, supra note 9, at 742.
[19] Levi, supra note 9, at 742–44.
[20] Id. at 744–45.
[21] Complaint at 16–17, Puma SE v. Forever 21, Inc., 2:17-cv-02523 (C.D. Cal. Mar. 31, 2017); Puma Files Patent, Copyright, Trade Dress Suit Against Forever 21 Over Rihanna Shoes, TTʜᴇ Fᴀsʜɪᴏɴ L. (Apr. 3, 2017), http://www.thefashionlaw.com/home/puma-files-design-patent-copyright-trade-dress-suit-against-forever-21-over-rihanna-footwear; Levi, supra note 9, at 739–40.
[22] Lily Chen, PUMA and Forever 21 Have Settled Lawsuit Over Rihanna’s Fenty Footwear, Hypebae (Nov. 9, 2018), https://hypebae.com/2018/11/puma-forever-21-rihanna-fenty-lawsuit; Forever 21, Puma Settle Lawsuit Over Copied Fenty Footwear, Tʜᴇ Fᴀsʜɪᴏɴ L. (Nov. 8, 2018), http://www.thefashionlaw.com/home/forever-21-puma-settle-lawsuit-over-copied-fenty-footwear.
[23] Jordan Outdoor Enterprises, Ltd. v. Yeezy Apparel, LLC et al, 4:18-cv-00053 (M.D. Ga.); Yeezy Slapped with Camouflage Copyright Lawsuit, Tʜᴇ Fᴀsʜɪᴏɴ L. (Mar. 16, 2018), http://www.thefashionlaw.com/home/yeezy-slapped-with-camouflage-copyright-lawsuit; Yeezy Denies Copying Camo But Claims If Co. Did Copy, It Was with “Innocent Intent”, Tʜᴇ Fᴀsʜɪᴏɴ L. (June 14, 2018), http://www.thefashionlaw.com/home/yeezy-denies-copying-camo?fbclid=IwAR3Grd4UFQ_R032fR-g2rJPf6jCpG8AWDY-lCcKGrB1GHftFbgoMT8FmtFE.
[24] Oral Argument Transcript, supra note 13, at 22–24, 27–28, 40–41, 45–46; see also Lee Burgunder, Does Star Athletica Raise More Questions Than it Answers?, IPWᴀᴛᴄʜᴅᴏɢ (Apr. 13, 2017), http://www.ipwatchdog.com/2017/04/13/star-athletica-raise-questions-answers/id=81977/ (pondering whether the conclusion in Star Athletica would be different if someone developed the best design for camouflage ever conceived).
[25] See Roy Kaufman, Is the US Supreme Court Decision Regarding Uniforms Worth Cheering For?, Tᴇᴄʜ. Cʀᴜᴄʜ, https://techcrunch.com/2017/07/26/is-the-us-supreme-court-decision-regarding-uniforms-worth-cheering-for/ (last visited Feb. 20, 2019); Judy Greenwald, High Court Fashion Statement Could Lead To More Lawsuits, Bus. Ins. (Mar. 28, 2017), https://www.businessinsurance.com/article/20170327/NEWS06/912312586/Supreme-Court-makes-fashion-statement-cheerleader-uniforms-ruling-Varsity-Athlet; Levi, supra note 9, at 716–17, 739–40, 776.
