Creativity in Fashion Design Copyright

By Jakob Baller – VP of Operations

Taking “inspiration” from designs found on the runway or in the market is an established practice amongst fashion designers. However, until recently, it was extremely difficult for designers to establish copyright protection for their work. In 2017 the United States Supreme Court issued a landmark decision in Star Athletica LLC v. Varsity Brands, which the opened the door for apparel designers to establish and claim copyright infringement of their designs. In short, the new standard established in this case requires that pictorial, graphical or sculptural elements of apparel designs are eligible for protection if they are conceptually separable from the useful article, which had replaced a much higher bar emphasizing physical separability of the artistic elements of a design, and which few apparel designs were ever able to meet. Indeed, Justice Breyer in his dissent argued that this new standard set the bar so low that it would be difficult to imagine designs which did not meet it. [i] In light of the the new Star Athletica standard, fashion designers are understandably more interested in registering their works knowing that they have much better chance at attaining copyright registration and enforcing their copyrights against infringing designs, and should also be much more wary of taking too much “inspiration” from existing designs. Unfortunately for designers, anticipating their ability to gain registration is not always as clear cut as one would think.

Though the separability requirement is now a much lower bar to gaining registration, thanks to Star Athletica, designs must still be sufficiently original to be copyrightable. Originality is a two-prong test requiring that a work be both developed independent from another work, and it also must be sufficiently creative. This creativity requirement is also a very low bar, as the Supreme Court noted in the seminal case Feist Publications, Inc. v. Rural Telephone Service Co. that “the requisite level of creativity is extremely low, even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark.”[ii] However, the Court notes that there will still be some works where creativity is “so utterly lacking or so trivial as to be virtually nonexistent….such works are incapable of sustaining a valid copyright.”[iii] This very fuzzy line between sufficient and insufficient creativity can result in surprising and unpredictable decisions made by the US Copyright Office.

One such case occurred when Adidas applied for copyright registration for the designs of their Yeezy Boost 350 Version 1 and Version 2 shoes. These designs were originally denied registration by the Copyright Office due to failing the separability test. Adidas asked for reconsideration, and while the Copyright Office acknowledged that while the shoes did contain “separable designs,” and thus met the Star Athletica separability standard, the designs did not meet the originality requirement and consisted only of “simple shapes arranged into common, expected patterns in very simple color schemes.”[i] Adidas submitted a request for a second reconsideration and this time the Copyright Office granted registration, noted that low standard set by the Feist decision had been met as the works combined stripes and shapes “in a distinctive manner indicating some ingenuity.”[ii]

In contrast, British Menswear brand Dunhill applied for registration of their fabric pattern which they titled “Engine Turn.” Much like the Adidas Yeezy Shoe example, the US Copyright Office initially refused registration and Dunhill requested reconsideration. The Copyright Office rejected registration a second time stating that the work comprised of a “simple arrangement of geometric shapes into a basic, garden-variety configuration.”[i] Dunhill subsequently requested a second reconsideration, pointing to a number of examples where registration was afforded by the Copyright Office to works consisting of simple geometric shapes, and also citing the cheerleader uniforms at issue in Star Athletica as one such example. However, the copyright office again denied registration, noting that while patterns consisting of uncopyrightable geometric shapes may possibly be afforded copyright protection when arranged in a “distinctive manner indicating some ingenuity” that in this case the work consists of a “few geometric shapes in a preordained and obvious arrangement.”[ii] The Copyright Office even went so far as to say that Dunhill’s reliance on prior examples of works that received registration to make their argument was misplaced as the office “does not compare works that have been previously registered or refused registration.” And instead “examines each claim on its own merits.”

The Star Athletica case made copyright protection much more accessible to fashion designers, and the low bar set in Feist to demonstrating that a design is original means that a wide swath of designs used in fashion can be afforded copyright protection. Indeed, in both cases the court noted how low the bar is that they set for meeting both the separability and originality requirements. However, while the bar to demonstrating originality is certainly very low, it is not nonexistent. The example of Dunhill’s “engine turn” design shows that a design which to a layman may look as artistic, if not more so, than the Adidas example does not mean it will be sufficiently original to the Copyright Office to be granted registration. Designers should keep this in mind when creating works using simple stripes and shapes; that if they desire copyright protection, they need to make sure to use some level of creativity and ingenuity in the arrangement and patterns of the elements. Even if the design in question is aesthetically pleasing, or seems like it took skill and artistry to make, it may not be able to pass creative muster with the Copyright Office.

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

[ii] See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)

[iii] Ibid

[iv] See “United States Copyright Office letter Re: Second Request for Reconsideration for Refusal To Register Yeezy Boost 350 Version 1, Yeezy Boost 350 Version 2” at https://www.copyright.gov/rulings-filings/review-board/docs/yeezy-boost.pdf

[v] ibid

[vi] See “United States Copyright Office Letter Re: Second Request for Reconsideration for Refusal to Register Engine Turn” at https://www.copyright.gov/rulings-filings/review-board/docs/engine-turn.pdf

[vii] ibid