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In This Chapter

Landmark Case

Star Athletica, LLC, v. Varsity Brands, Inc., 137 S.Ct. 1002 (2017)

Authored by: Michelle Bogre , Nancy Wolff

The Routledge Companion to Copyright and Creativity in the 21st Century

Print publication date:  November  2020
Online publication date:  November  2020

Print ISBN: 9781138999251
eBook ISBN: 9781315658445
Adobe ISBN:

10.4324/9781315658445-40

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Abstract

When we think of copyright, we tend to think of “traditional” creative mediums: photography, literature, music, and sculpture. Clothing does not typically fit under this rubric, even though clothing design is a creative profession. Consumers choose clothes for aesthetic reasons, critics comment on the design of clothes, and high fashion enjoys the same sort of full-fledged artistic criticism that is aimed at films, books, and songs. For copyright purposes, clothing is not protected because it is considered to be a “useful article,” defined as an article that possesses an intrinsic utilitarian purpose distinct from exhibiting the article’s appearance or carrying information. The Copyright Act does extend protection to the design of a useful article if this design incorporates pictorial, graphic, or sculptural features that are capable of existing separately from the utilitarian elements of the article. If the useful article’s design meets this “independent-existence requirement,” then it is considered a pictorial, graphic, or sculptural work under the Copyright Act and consequently entitled to copyright protection. This is what the Supreme Court addressed in Star Athletica.

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