Will the SCOTUS Ruling on Cheerleading Skirts Change the Future of Fashion?

On March 22nd, the Supreme Court of the United States upheld the decision to grant a cheerleading uniform manufacturer the ability to copyright its designs. By testing the limits of existing U.S. copyright laws, this decision opens the possibility for changes in future legal protection of fashion designs.

Protecting Fashion Designs

Since the early 2000s, fast fashion brands have fed mass markets’ growing demand for runway trends by recreating trendy styles for lower prices. However, consumers’ quest to find the “look for less” has led many leading high-end designers to believe that the industry is losing its integrity. In a trend-driven industry with few laws preventing the replication of designs, preserving artistic integrity in fashion can be a challenge. Under the Copyright Act of 1976, “useful articles” including garments are not considered protectable; since fashion garments are considered functional items, only specific design elements (not the designs themselves) can be legally protected. Specific protections are generally exclusive to trade dress, trademarked logos, prints, and other distinctive ornamental features of the clothing and accessories.

Fashion Law Worldwide

The lax American legal stance on fashion design protection varies drastically from policies in world fashion hubs; in Japan and the European Union, for instance, close copying of fashion designs is prohibited. This disparity presents unique challenges for international couturiers and global retail brands like Zara, Topshop, and Forever 21. In recent years, many prominent fashion designers (including Jason Wu, Narciso Rodriguez, Diane von Furstenberg, and Thakoon Panichgul) have unsuccessfully lobbied Congress for the reform of intellectual property laws concerning fashion design.  While their efforts to improve industry integrity and reduce design piracy have been long overlooked, a new Supreme Court decision could make progress in their favor.

Star Athletica, LLC v. Varsity Brands, Inc.

Could last month’s U.S. Supreme Court decision on cheerleading uniforms be the answer industry critics have been looking for? The March 22nd decision affirmed that the markers on Varsity Brands cheerleading uniforms were protectable, as the aesthetic design of the uniform is not merged with its function as a garment, but rather “separable.” Rather than being merged with the uniform’s function as a garment, the court identified that the aesthetic design of a cheerleading uniform is considered a “two-or-three dimensional art separate from the useful article.” Amicus briefs filed by prominent fashion authorities (including the Fashion Law Institute, Narciso Rodriguez, Proenza Schouler, and the Council of Fashion Designers of America) supported the decision.

Looking Forward

What does this mean for the future of fashion design? Broadly, the Supreme Court’s reasoning is simply a reiteration of existing protections of graphics, sculptures, and other artworks. As a result of this decision, graphic and pictorial design works that appear on products that are both functional and ornamental (like garments, instruments, and furniture) can be protected by copyright. Though these criteria only encompass a narrow range of fashion products, this ruling opens the possibility for the interpretation of future fashion designs as works of art.

While more specific to graphic design and photography, this decision is a step toward recognizing designers’ integrity as artists within a primarily commercial industry. However, these possible changes do not come without potential consequences; if more future designs are deemed more expressive than functional, increased protections could lead to spikes in fashion prices and the decline of affordable fashion brands.

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