Can you copyright clothing? What Star Athletica v. Varsity Brands decided

Mostly no. Copyright does not protect the shape, cut or dimensions of a garment, because clothing is a useful article. It can protect separable artwork on the clothing, such as a printed pattern, as the Supreme Court held in Star Athletica v. Varsity Brands on March 22, 2017. A design patent can cover an ornamental design for 15 years.

The rule: clothing is a "useful article"

The U.S. Copyright Office's Compendium of Practices lists "articles of clothing," "footwear" and "textile fabrics" among its examples of useful articles, meaning things with an intrinsic utilitarian function. It quotes the Supreme Court on why: the "shape, cut, and dimensions" of an article of clothing is "inherently useful because it covers the body." Copyright law excludes the useful part of such an article. It can still reach the design features that sit on top of it.

Fanciful costumes get no special pass. The Compendium says that although they portray a character, they also may serve the "intrinsic useful function of clothing the human body," and the Office examines them for design elements "conceptually separable from the utilitarian aspects of the article."

The case that set the test

Varsity Brands designs and sells cheerleading uniforms. According to the Supreme Court's opinion, it held more than 200 copyright registrations for two-dimensional designs of chevrons, lines and shapes on the uniforms' surfaces. Star Athletica also sold cheerleading uniforms, and the case reached the Court as No. 15-866.

On March 22, 2017 the Court affirmed the Sixth Circuit, 6 to 2 in the judgment. Justice Thomas wrote for the majority, joined by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan. Justice Ginsburg concurred only in the judgment, and Justice Breyer dissented, joined by Justice Kennedy.

The test is two parts. A feature of a useful article's design is protectable if it:

• "can be perceived as a two- or three-dimensional work of art separate from the useful article," and
• "would qualify as a protectable pictorial, graphic, or sculptural work" if "imagined separately from the useful article," on its own or in another medium.

Justice Breyer's dissent, joined by Justice Kennedy, agreed on the starting point, stating that "cheerleader uniforms are useful articles." The disagreement was about whether the surface designs could be treated as separable. Justice Ginsburg agreed with the result but not the majority's reasoning, so the Court's judgment and its test were not unanimous.

The Court found the uniforms' surface designs met both parts. It was careful on scope. The opinion notes that a uniform, like a shovel, cannot itself be copyrighted, and that holding the designs protectable does not decide whether they are original enough to be copyrighted. Originality was not before the Court.

What this means in practice

Using the rule and the Compendium, here is how common fashion elements sort out. This is our reading of the sources, not a legal opinion.

• A printed or woven pattern, an illustration on a T-shirt, a graphic: these can be separable two-dimensional works. That is the kind of feature at issue in Star Athletica.
• A hem length, a sleeve cut, a silhouette: this is the shape and cut of the garment. The Court's language says it is useful and the Compendium repeats it.
• A fabric as a whole: the Compendium lists textile fabrics as useful articles, so the same separability question applies to its design.
• Copying a competitor's whole dress: the cut and construction are not protected by copyright, whatever its look. Separable artwork on it may be.

The other route: design patents

Design patents are a separate system from copyright, and the one fact we verified is the term. Title 35, section 173 of the U.S. Code provides: "Patents for designs shall be granted for the term of 15 years from the date of grant." Congress changed the term from 14 years to 15 in a 2012 amendment, and the statute's note ties the change to applications filed on or after May 13, 2015, subject to the implementing provisions. Our jeans history shows how patents handle clothing: the 1873 patent on riveted pockets covered a feature, not a garment.

What this does not cover

We have looked at copyright and design patents only. Trademarks and trade dress, which protect brand identifiers such as logos and sometimes product appearance, work differently and are outside this page. So is copying in other countries, where the rules differ. If you are about to launch or defend a design, a lawyer who works on intellectual property is the person to ask.

Designers and sellers are part of a workforce the Bureau of Labor Statistics tracks, and our report on fashion industry jobs and pay covers the roles.

How the Copyright Office applies it

The Compendium's section 924.3 on the separability test has sub-headings that read like a checklist: the separate-identification requirement, the independent-existence requirement, a note that separable features "may enhance the functionality of the useful article," and a note that they "may cover the entire surface of a useful article." The last two matter for clothing. A print can make a garment more appealing, and it can run across the whole fabric, and neither fact by itself defeats protection.

Our take

Believe the narrow version of "you cannot copyright fashion." The cut is free for anyone to copy. The artwork on it is not, if it meets the Court's two-part test and is original. When a brand says a lookalike copied its design, ask which element: if it is a print, copyright may apply, and if it is a silhouette, it likely does not.

Sources: the opinion in No. 15-866 as published by Cornell's Legal Information Institute, the Copyright Office's Compendium (Third), Chapter 900, the version dated January 28, 2021, and 35 U.S.C. 173. Check the current text before relying on any of it.