The U.S. Supreme Court is about to delve into a dispute over cheerleading uniforms that could clarify a huge question in the fashion industry: When is an article of clothing or accessory eligible for copyright protection?
The justices will hear oral arguments on Oct. 31 in Star Athletica v. Varsity Brands, a long-running dispute between two cheerleading uniform companies over whether certain design elements are protected by copyright law. This case centers around the fact that copyright law does not typically protect clothes and accessories because they are useful articles. An exception is made, however, when pictorial, graphic and sculptural (PGS) elements are conceptually or physically separable from the utilitarian aspects. But courts have grappled with defining the line between what’s protected and what’s not, resulting in a number of different approaches when determining separability.
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