June 7, 2023

Volume XIII, Number 158


June 06, 2023

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June 04, 2023

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Supreme Court Decision Arms Clothing Designers with 'Powerful Tool'

As a result of a recent Supreme Court decision, clothing designers are expected to have an easier time stopping others from copying their original designs.

On Wednesday, March 22, the Supreme Court issued guidelines to determine whether a clothing design is copyrightable. Traditionally, clothing manufacturers have had trouble protecting their designs. This Supreme Court decision in Star Athletica, LLC v. Varsity Brands, Inc. will likely change this and give designers and clothing manufacturers greater ability to protect against copying or "knock-offs" of their proprietary designs.

The Copyright Act does not protect "useful articles." A "useful article" is "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information." Historically, clothing has been classified as a "useful article" with little intellectual property protections made available. However, the Copyright Act does protect clothing designs if the designs "can be identified separately from and are capable of existing independently of, the utilitarian aspects of the article." Accordingly, clothing designs are protectable where the design is "separable" from the "useful article." The guidelines for determining "separability" has, in the words of the Sixth Circuit Court of Appeals, "confounded courts and scholars" and "has been a mess for a long time."

The Supreme Court cleaned up the mess this week by issuing guidelines to determine whether a clothing design is a "separable" expression that can be protected by copyright. The Court held that a clothing design could be protected 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 either on its own or when fixed in some other tangible medium

If a clothing design meets this standard, clothing companies can prevent others from reproducing their clothing design in any medium of expression.

This ruling provides a powerful tool to protect a company's intellectual property. 

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume VII, Number 83

About this Author


Todd Davidovits’s experience allows him to work with clients to strategically guide them through the complex nature of intellectual property. As legal judicial extern to the honorable John A. Kronstadt, he gained important insight into understanding the Court's decision-making process. With the in-depth understanding of the process he gained from this experience, he is able to offer clients straightforward, business-oriented legal advice. Todd also had the unique opportunity to serve as a research assistant to noted intellectual property professors David Nimmer and Neil...

Matthew J. Smith, Polsinelli, Patent Licensing Lawyer, Portfolio Determinations Attorney

Matthew Smith is passionate about helping clients protect their intellectual property. He concentrates his practice on providing clients counsel across a wide spectrum of issues, including:

•    Licensing

•    Custom software development

•    Hosting

•    Consulting

•    Procurement

•    Intellectual property joint development ventures

•    E-business and intellectual property matters

Adam Weiss Polsinelli Law Firm Intellectual Property Attorney

Adam S. Weiss represents small businesses and large corporations, as well as both plaintiffs and defendants, to secure, protect, monetize and litigate all types of intellectual property rights.

Adam honed his style and strategies while working with leading companies and their largest brands. He was instrumental as one of the lead counsel in an ITC case in which the Commission first recognized common law trade dress rights. Adam recently won a first-of-its-kind patent infringement case, invalidating all asserted patents under the Alice ...