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.