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Apparel
9 min read
Areas of Expertise :
Apparel, Textiles, Graphic Design, Copyright, Intellectual Property
Published Date:
Last Modified Date:
Jurisdiction:
Federal. Sixth Circuit
The U.S. Supreme Court decided Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, on March 22, 2017, affirming the Sixth Circuit in a 6–2 outcome. The Court articulated a single separability rule: a feature of a “useful article” is copyrightable only if (1) it can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) it would qualify as a protectable pictorial, graphic, or sculptural work on its own or if fixed in another medium when imagined apart from the article. Applying that test, the Court held that Varsity’s chevrons, stripes, lines, and shapes, which are two-dimensional textile surface decorations integrated into cheerleading uniforms, are eligible for protection. However, the ruling makes clear that respondents have no right to prevent anyone from manufacturing a uniform identical in “shape, cut, or dimensions.” Justice Thomas wrote the opinion joined by the Chief Justice and Justices Alito, Sotomayor, and Kagan; Justice Ginsburg concurred in the judgment; Justice Breyer dissented joined by Justice Kennedy.
The decision rejects extra-statutory add-ons (e.g., designer intent, marketability) and the physical/conceptual separability divide, resolving long-standing conflict among lower courts. It also clarifies what the ruling did not decide: the Court addressed eligibility under §101’s separability standard, not whether the asserted graphics satisfy the low originality threshold under Feist, a point emphasized by the U.S. Copyright Office’s analysis. Practically, the opinion confirms that applied textile and apparel artwork may be protected when it meets §101, while competitors remain free to copy garment shapes so long as they do not reproduce the protected surface designs, an important clarification for fashion, apparel, and textile design industries.
Varsity Brands sued Star Athletica alleging copyright infringement of two-dimensional surface graphics, chevrons, stripes, lines, and color blocks, used on cheerleading uniforms, but the district court held the designs were inseparable from the uniforms’ utilitarian aspects and granted summary judgment to Star. The ruling concluded the graphics were not protectable because they served the function of identifying the garments as cheerleading uniforms.
The Sixth Circuit reversed, holding the designs could be “identified separately” and were “capable of existing independently” of the uniforms under 17 U.S.C. §101, thus allowing the claims to proceed. The appellate court’s ruling (799 F.3d 468) reframed the dispute around conceptual separability for two-dimensional textile graphics and surface artwork applied to useful articles such as apparel.
The Supreme Court agreed to resolve widespread disagreement over the proper separability test for features incorporated into useful articles. Certiorari was granted on May 2, 2016, setting the case for full briefing and argument.
During oral argument, the Justices probed whether two-dimensional graphics (like chevrons and stripes) applied to uniforms remain protectable art when imagined apart from the garment, and whether designer intent or garment “utility” should influence the analysis. Exchanges highlighted hypotheticals (e.g., tuxedo-shirt graphics) and clarified that the legal inquiry centers on the extracted feature, not the remaining useful article.
In a 6–2 decision authored by Justice Thomas, the Court held a feature in the design of a useful article is copyrightable only if (1) it can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) it would qualify as a protectable pictorial, graphic, or sculptural work on its own or if fixed in another medium when imagined apart from the article; the Court applied that test and concluded Varsity’s surface decorations meet both prongs. The opinion emphasized that protection covers the surface graphics, not the uniform’s shape, cut, or dimensions; Justice Ginsburg concurred in the judgment, and Justice Breyer dissented joined by Justice Kennedy. Final resolution: the Supreme Court affirmed the Sixth Circuit; the decision addressed legal standards and did not award damages.
The U.S. Copyright Office explained that Star Athletica establishes a unified separability standard for art incorporated into useful articles, including applied textile and fabric designs, and does not itself decide originality under Feist; it confirms that two-dimensional textile artwork and apparel graphics may be protected if they satisfy §101, while competitors can still manufacture garments with identical cuts so long as they do not copy the protected surface patterns, an important clarification for the fashion, apparel, and textile design industries.
Court:
United States District Court for the Western District of Tennessee
Case Name:
Star Athletica, L.L.C. v. Varsity Brands, Inc.
Textiles engineering
Garment Industry
Fashion Design
Copyright Infringement
The U.S. Supreme Court decided Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, on March 22, 2017, affirming the Sixth Circuit in a 6–2 outcome. The Court articulated a single separability rule: a feature of a “useful article” is copyrightable only if (1) it can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) it would qualify as a protectable pictorial, graphic, or sculptural work on its own or if fixed in another medium when imagined apart from the article. Applying that test, the Court held that Varsity’s chevrons, stripes, lines, and shapes, which are two-dimensional textile surface decorations integrated into cheerleading uniforms, are eligible for protection. However, the ruling makes clear that respondents have no right to prevent anyone from manufacturing a uniform identical in “shape, cut, or dimensions.” Justice Thomas wrote the opinion joined by the Chief Justice and Justices Alito, Sotomayor, and Kagan; Justice Ginsburg concurred in the judgment; Justice Breyer dissented joined by Justice Kennedy.
The decision rejects extra-statutory add-ons (e.g., designer intent, marketability) and the physical/conceptual separability divide, resolving long-standing conflict among lower courts. It also clarifies what the ruling did not decide: the Court addressed eligibility under §101’s separability standard, not whether the asserted graphics satisfy the low originality threshold under Feist, a point emphasized by the U.S. Copyright Office’s analysis. Practically, the opinion confirms that applied textile and apparel artwork may be protected when it meets §101, while competitors remain free to copy garment shapes so long as they do not reproduce the protected surface designs, an important clarification for fashion, apparel, and textile design industries.
Varsity Brands sued Star Athletica alleging copyright infringement of two-dimensional surface graphics, chevrons, stripes, lines, and color blocks, used on cheerleading uniforms, but the district court held the designs were inseparable from the uniforms’ utilitarian aspects and granted summary judgment to Star. The ruling concluded the graphics were not protectable because they served the function of identifying the garments as cheerleading uniforms.
The Sixth Circuit reversed, holding the designs could be “identified separately” and were “capable of existing independently” of the uniforms under 17 U.S.C. §101, thus allowing the claims to proceed. The appellate court’s ruling (799 F.3d 468) reframed the dispute around conceptual separability for two-dimensional textile graphics and surface artwork applied to useful articles such as apparel.
The Supreme Court agreed to resolve widespread disagreement over the proper separability test for features incorporated into useful articles. Certiorari was granted on May 2, 2016, setting the case for full briefing and argument.
During oral argument, the Justices probed whether two-dimensional graphics (like chevrons and stripes) applied to uniforms remain protectable art when imagined apart from the garment, and whether designer intent or garment “utility” should influence the analysis. Exchanges highlighted hypotheticals (e.g., tuxedo-shirt graphics) and clarified that the legal inquiry centers on the extracted feature, not the remaining useful article.
In a 6–2 decision authored by Justice Thomas, the Court held a feature in the design of a useful article is copyrightable only if (1) it can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) it would qualify as a protectable pictorial, graphic, or sculptural work on its own or if fixed in another medium when imagined apart from the article; the Court applied that test and concluded Varsity’s surface decorations meet both prongs. The opinion emphasized that protection covers the surface graphics, not the uniform’s shape, cut, or dimensions; Justice Ginsburg concurred in the judgment, and Justice Breyer dissented joined by Justice Kennedy. Final resolution: the Supreme Court affirmed the Sixth Circuit; the decision addressed legal standards and did not award damages.
The U.S. Copyright Office explained that Star Athletica establishes a unified separability standard for art incorporated into useful articles, including applied textile and fabric designs, and does not itself decide originality under Feist; it confirms that two-dimensional textile artwork and apparel graphics may be protected if they satisfy §101, while competitors can still manufacture garments with identical cuts so long as they do not copy the protected surface patterns, an important clarification for the fashion, apparel, and textile design industries.
Textiles & Apparel Expert Witnesses
Experts in apparel and textile design are often engaged to examine two-dimensional surface graphics such as chevrons, stripes, lines, and color arrangements on garments, mapping what was registered to what appears on the accused products. They explain how artwork can be perceived separately from a garment’s utilitarian aspects and how placement relates to design practice under §101’s separability framework. They also clarify that artwork protection does not extend to a uniform’s shape, cut, or dimensions, which the Supreme Court emphasized remain free to copy.
Graphic Design Expert Witness
Graphic design experts are commonly consulted to analyze the pictorial and graphic elements at issue (composition, linework, color blocking), and to demonstrate how a feature can be perceived as art separate from the useful article and would qualify as a protectable work if imagined in another medium. They may prepare side-by-side visuals or extractions of the asserted artwork to illustrate separability consistent with the Supreme Court’s two-prong test. Their input focuses on the artwork itself rather than garment construction, aligning with the Court’s focus on the extracted feature.
Copyright and Trademark Expert Witnesses
Copyright and trademark experts are often engaged to clarify statutory frameworks, explain how courts apply separability standards to useful articles, and place decisions like Star Athletica within broader intellectual property law. They typically outline what rulings decide and what issues remain outside the scope, such as originality or registration thresholds. Their insights also help contextualize how judicial reasoning has shifted away from extra-statutory approaches like designer intent or marketability tests, aligning with the Court’s opinion.
Digital Forensics Expert Witness
Digital forensics experts are usually called in to compare registered deposits and accused designs using overlays, vector analysis, and metadata to assess copying of the two-dimensional artwork at issue. Their work product supports a record focused on pictorial and graphic elements, consistent with the Supreme Court’s emphasis on the extracted feature rather than the remainder of the useful article. They present technical visuals to aid courts in applying the separability test without conflating artwork with garment construction.
Adopt the Supreme Court’s Unified Separability Test
Attorneys should recognize that Star Athletica replaced decades of fragmented lower-court approaches with a single two-prong test for separability under 17 U.S.C. §101. This provides a clear standard for evaluating when design elements on useful articles are protectable as applied art. Legal arguments must now focus on whether artwork can be perceived separately and imagined independently as a protectable work.
Distinguish Between Textile Artwork and Garment Construction
The ruling clarified that copyright protection extends only to two-dimensional textile patterns and surface designs, not to a uniform’s shape, cut, or dimensions. This distinction safeguards fabric-based decorative graphics without granting monopolies over functional garment structures. Attorneys should carefully frame claims to focus on protectable textile artwork while avoiding overreach into utilitarian features.
Avoid Reliance on Designer Intent or Marketability Tests
The Court explicitly rejected factors such as intent, design methods, or market value in determining separability. These extra-statutory tests once divided circuits but are no longer valid after the decision. Legal strategies should instead remain grounded in statutory text and the Court’s two-step analysis.
Emphasize the Limited Scope of Protection
Attorneys should highlight for clients that Star Athletica protects applied textile patterns and apparel surface artwork, but leaves garment shapes, cuts, and dimensions open to competition. This distinction helps manage expectations in the fashion and textile industries, where functional garment features dominate production. It also allows for clearer litigation strategies when advising both plaintiffs and defendants on the difference between protectable fabric designs and unprotectable clothing structures.
Consider Broader Intellectual Property Alternatives
While copyright protects surface graphics, Star Athletica leaves room for other IP tools such as trademark, trade dress, and design patents to cover additional aspects of apparel. Attorneys should evaluate these parallel strategies to create comprehensive protection frameworks. Combining rights can be crucial in industries where both utility and creativity overlap.
Star Athletica v. Varsity Brands established a single, text-anchored separability test for features of a “useful article,” affirming that two conditions must be met before pictorial, graphic, or sculptural elements qualify for copyright protection and clarifying that protection does not extend to a garment’s shape, cut, or dimensions. By affirming the Sixth Circuit in a 6–2 decision and rejecting extra-statutory factors (such as designer intent or marketability), the Court provided a stable framework for evaluating applied art while leaving questions of originality outside the ruling’s scope.
For fashion, apparel, and textile design, the decision draws a clear line between protectable surface artwork and unprotectable functional form, helping attorneys structure claims and defenses around §101’s two-prong analysis and the extracted artwork itself. Post-decision guidance from the U.S. Copyright Office underscores that this unified standard governs how art incorporated into useful articles is evaluated, while competitors remain free to reproduce garment silhouettes so long as they do not copy protected graphics, key clarity for counseling clients, drafting registrations, and comparing accused designs.
What was Star Athletica v. Varsity Brands about?
The case concerned whether two-dimensional designs, such as chevrons and stripes on cheerleading uniforms, could be protected under copyright law. The Court clarified that such surface graphics may be protected if they satisfy the separability test.
When did the Supreme Court decide Star Athletica v. Varsity Brands?
The U.S. Supreme Court issued its decision on March 22, 2017. The ruling affirmed the Sixth Circuit’s judgment in a 6–2 outcome.
What legal test did the Supreme Court establish in this case?
The Court adopted a unified separability test, requiring that a feature of a useful article is protectable if it can be perceived as a work of art separate from the article and would qualify as a protectable work on its own or in another medium. This test resolved decades of inconsistent lower-court approaches.
What aspects of cheerleading uniforms were ruled copyrightable?
The Court held that Varsity’s surface decorations, including chevrons, stripes, and shapes, are copyrightable. At the same time, the uniform’s shape, cut, and dimensions remain outside the scope of protection.
Did the Supreme Court award damages in this case?
No, the Supreme Court did not award damages. The decision was limited to clarifying the legal standard for copyright eligibility under §101.
Why is this case significant for the fashion and textile industries?
The ruling makes clear that while garment shapes are free to copy, two-dimensional textile patterns, fabric motifs, and apparel surface artwork can be protected if they meet the separability test. This distinction provides essential guidance for the fashion and textile industries, clarifying how copyright applies to decorative fabric designs and applied graphics without extending to the functional construction of garments.
Textiles & Apparel Expert Witnesses
Experts in apparel and textile design are often engaged to examine two-dimensional surface graphics such as chevrons, stripes, lines, and color arrangements on garments, mapping what was registered to what appears on the accused products. They explain how artwork can be perceived separately from a garment’s utilitarian aspects and how placement relates to design practice under §101’s separability framework. They also clarify that artwork protection does not extend to a uniform’s shape, cut, or dimensions, which the Supreme Court emphasized remain free to copy.
Graphic Design Expert Witness
Graphic design experts are commonly consulted to analyze the pictorial and graphic elements at issue (composition, linework, color blocking), and to demonstrate how a feature can be perceived as art separate from the useful article and would qualify as a protectable work if imagined in another medium. They may prepare side-by-side visuals or extractions of the asserted artwork to illustrate separability consistent with the Supreme Court’s two-prong test. Their input focuses on the artwork itself rather than garment construction, aligning with the Court’s focus on the extracted feature.
Copyright and Trademark Expert Witnesses
Copyright and trademark experts are often engaged to clarify statutory frameworks, explain how courts apply separability standards to useful articles, and place decisions like Star Athletica within broader intellectual property law. They typically outline what rulings decide and what issues remain outside the scope, such as originality or registration thresholds. Their insights also help contextualize how judicial reasoning has shifted away from extra-statutory approaches like designer intent or marketability tests, aligning with the Court’s opinion.
Digital Forensics Expert Witness
Digital forensics experts are usually called in to compare registered deposits and accused designs using overlays, vector analysis, and metadata to assess copying of the two-dimensional artwork at issue. Their work product supports a record focused on pictorial and graphic elements, consistent with the Supreme Court’s emphasis on the extracted feature rather than the remainder of the useful article. They present technical visuals to aid courts in applying the separability test without conflating artwork with garment construction.
Adopt the Supreme Court’s Unified Separability Test
Attorneys should recognize that Star Athletica replaced decades of fragmented lower-court approaches with a single two-prong test for separability under 17 U.S.C. §101. This provides a clear standard for evaluating when design elements on useful articles are protectable as applied art. Legal arguments must now focus on whether artwork can be perceived separately and imagined independently as a protectable work.
Distinguish Between Textile Artwork and Garment Construction
The ruling clarified that copyright protection extends only to two-dimensional textile patterns and surface designs, not to a uniform’s shape, cut, or dimensions. This distinction safeguards fabric-based decorative graphics without granting monopolies over functional garment structures. Attorneys should carefully frame claims to focus on protectable textile artwork while avoiding overreach into utilitarian features.
Avoid Reliance on Designer Intent or Marketability Tests
The Court explicitly rejected factors such as intent, design methods, or market value in determining separability. These extra-statutory tests once divided circuits but are no longer valid after the decision. Legal strategies should instead remain grounded in statutory text and the Court’s two-step analysis.
Emphasize the Limited Scope of Protection
Attorneys should highlight for clients that Star Athletica protects applied textile patterns and apparel surface artwork, but leaves garment shapes, cuts, and dimensions open to competition. This distinction helps manage expectations in the fashion and textile industries, where functional garment features dominate production. It also allows for clearer litigation strategies when advising both plaintiffs and defendants on the difference between protectable fabric designs and unprotectable clothing structures.
Consider Broader Intellectual Property Alternatives
While copyright protects surface graphics, Star Athletica leaves room for other IP tools such as trademark, trade dress, and design patents to cover additional aspects of apparel. Attorneys should evaluate these parallel strategies to create comprehensive protection frameworks. Combining rights can be crucial in industries where both utility and creativity overlap.
Star Athletica v. Varsity Brands established a single, text-anchored separability test for features of a “useful article,” affirming that two conditions must be met before pictorial, graphic, or sculptural elements qualify for copyright protection and clarifying that protection does not extend to a garment’s shape, cut, or dimensions. By affirming the Sixth Circuit in a 6–2 decision and rejecting extra-statutory factors (such as designer intent or marketability), the Court provided a stable framework for evaluating applied art while leaving questions of originality outside the ruling’s scope.
For fashion, apparel, and textile design, the decision draws a clear line between protectable surface artwork and unprotectable functional form, helping attorneys structure claims and defenses around §101’s two-prong analysis and the extracted artwork itself. Post-decision guidance from the U.S. Copyright Office underscores that this unified standard governs how art incorporated into useful articles is evaluated, while competitors remain free to reproduce garment silhouettes so long as they do not copy protected graphics, key clarity for counseling clients, drafting registrations, and comparing accused designs.
What was Star Athletica v. Varsity Brands about?
The case concerned whether two-dimensional designs, such as chevrons and stripes on cheerleading uniforms, could be protected under copyright law. The Court clarified that such surface graphics may be protected if they satisfy the separability test.
When did the Supreme Court decide Star Athletica v. Varsity Brands?
The U.S. Supreme Court issued its decision on March 22, 2017. The ruling affirmed the Sixth Circuit’s judgment in a 6–2 outcome.
What legal test did the Supreme Court establish in this case?
The Court adopted a unified separability test, requiring that a feature of a useful article is protectable if it can be perceived as a work of art separate from the article and would qualify as a protectable work on its own or in another medium. This test resolved decades of inconsistent lower-court approaches.
What aspects of cheerleading uniforms were ruled copyrightable?
The Court held that Varsity’s surface decorations, including chevrons, stripes, and shapes, are copyrightable. At the same time, the uniform’s shape, cut, and dimensions remain outside the scope of protection.
Did the Supreme Court award damages in this case?
No, the Supreme Court did not award damages. The decision was limited to clarifying the legal standard for copyright eligibility under §101.
Why is this case significant for the fashion and textile industries?
The ruling makes clear that while garment shapes are free to copy, two-dimensional textile patterns, fabric motifs, and apparel surface artwork can be protected if they meet the separability test. This distinction provides essential guidance for the fashion and textile industries, clarifying how copyright applies to decorative fabric designs and applied graphics without extending to the functional construction of garments.
Textiles engineering
Garment Industry
Fashion Design
Copyright Infringement
Marketing, +3
Apparel