Copyright protection standard for clothing articulated as conceptual separability will now be entertained by the U.S. Supreme Court amid the background of disparate circuit court views. Copyright protection applies to the features pertaining to design, of say, articles, and pictures. The garment sector items fall into the dichotomy of use or utility, as the design varyingly is construed to not be separate from its utility by a variety of courts. However, according to utility concept, described in section 101 of the Copyright Act of 1976, there has to be an independent existence of the article item. The notion is that there has to be a separability regarding the design and its use, i.e., utility. This concern is before the U.S. Supreme Court in Star Athletica LLC v. VarsityBrands, Inc. What the Court will struggle with as other courts have previously, is to construe the independence of the design from its use or the items’ function, with the purpose of delineating when copyright protection can inure to it.
The garment maker, Varsity Brands argued, in its suit in the U.S. District for the Western District Court of Tennessee, against Star Athletica, copyright infringement on certain garments designed for cheerleading. Star Athletica argued for the absence of any copyright infringement because of the utility of the garments in its intended use which rendered it not copyrightable. The District court agreed with Star Athletica in that the garment had a functional aspect to it in that the individual wearing the garment would be construed to be a cheerleader. This was based on identity sake of item usage. Hence, the court in granting summary judgment stated that ‘the designs at issue were functional because they identified …the ideal of ‘cheerleading-uniform-ness’, and therefore useful. The usefulness rendered it not copyrightable.
The 6th Circuit disagreed in that it determined that graphic features of Varsity’s designs had a conceptual value. By having a conceptual value, there would be a separation between the conceptual design of the garment and its use. The use or function of the garment, in this case, was for cheerleading which can be construed separately from the garment’s design. It seems the court held a position followed by the 7th Circuit which emphasizes the designer’s judgement in balance with function and design. Of interest would be the emphasis the Supreme Court would give to the physical aspects of the item’s usage and design as the Fourth Circuit struggled with along with the Fifth Circuit’s analysis regarding the marketability of the item in question. As it balances the varied circuit views, the test for conceptual separability between the design and the usefulness of the garment is not without its apparent application in other sectors of which involve household goods, furnishings, etc. The bottom point of analysis is where the balance will be drawn on identifying the design characteristics of the garment or item in question from its useful purpose. The result will change the direction of copyright enforcement regarding the utility of an item whether seen together or separate from its design.
 Star Athletica, L.L.C. v. Varsity Brands, Inc., 84 USLW 3407, US, May 2, 2016 (No. 15-866).
 Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913 (7th Cir. 2004).
 Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417(4th Cir. 2010).
 Galiano v. Harrah’s Operating Co., 416 F.3d 411(5th Cir. 2005).