Do You Pass The Copyright Test?

Posted By: Eric Ludwig
Date: April 6, 2017

Whether or not the design elements of cheerleader uniforms can be copyrighted might, at first glance, seem a bit inconsequential. After all, except for certain graphics, school/team colors, or stitch patterns, cheerleader outfits are all pretty much the same, aren’t they?

Not so, says the United States Supreme Court, which recently ruled on a case that has far-ranging applicability to other types of designs, particularly in the clothing, active gear, and fashion industries. Business owners, designers, brand specialists, and marketers should take notice: the implications are obvious.  Traditionally, copyright has applied to original works of art, but not to industrial/utilitarian designs. But what happens when an industrial design incorporates artistic elements. Where does the application of copyright begin and where does it end?

The opinion lays out a new test for determining whether or not creative components of an otherwise useful and utilitarian item are eligible for copyright protection.  In penning the majority opinion (the Court ruled 6-2), Justice Clarence Thomas writes, “Congress has provided copyright protection for original works of art, but not for industrial designs. The line between art and industrial design, however, is often difficult to draw. This is particularly true when an industrial design incorporates artistic elements. Congress has afforded limited protection for these artistic elements by providing that ‘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.’”

Thus, Justice Thomas continues, a feature incorporated into the design of a useful article is eligible for copyright protection if that particular design feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) if that feature qualifies for copyright protection as a standalone pictorial, graphic, sculptural work, or some other tangible medium of expression.

Industrial Design . . . Functional and Fun

Passing the Test

Once these tests are satisfied, the item is eligible for copyright. Clearly, this has widespread implications not only for those in the fashion and active wear industries, but for anyone dealing with artistic elements and the design of utilitarian/useful items. This ruling adds a whole other layer of considerations for individuals and businesses in the process of designing or redesigning their brands and product/service marks.

As we’ve emphasized before, working with an intellectual property/trademark attorney early on in the brand design/redesign process can save you and your company a great deal of headaches ahead of time. That’s where experts like me come in. If you find yourself in a situation, or think there’s potential that you might be in this position someday, give me a call at (619) 929-0873.

In the meantime, for a little extra reading on the cheerleader uniform case, see the Reuters article, “US Supreme Court Rules Uniform Design Elements Can Be Copyrighted.”


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