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Fashion and Copyright
The Supreme Court is currently hearing a case involving cheerleading uniforms and copyright. The case, Star Athletica v. Varsity Brands, has to do with the designs on the uniforms sold by Varsity. Varsity sued Athletica when they started selling uniforms with similar designs. It might be surprising to learn that fashion design enjoys very little copyright protection. Designs printed onto or woven into the fabric used to make clothing can be copyright-protected but the design of the clothes themselves cannot be. This is because utilitarian things (or “useful articles”) are not subject to copyright. The Court’s decision will likely hinge on whether they determine that Varsity’s designs are utilitarian (as Athletica asserts they are) or whether they are purely decorative. If the Court decides in favor of Varsity, it could have some significant impact on the fashion industry.
Fashion is one of the industries that seems to run counter to our intuitions about the role of copyright in sparking and protecting innovation and in ensuring that creators can profit from their work. How can a creative industry survive and thrive without copyright protection? There is a terrific book (available as an ebook from the PCC library) that addresses this question:
The Knockoff Economy How Imitation Sparks Innovation by Kal Raustiala & Christopher Sprigman