Copyright and Clothing
The first case, Star Athletica LLC v. Varsity Brands, Inc., concerns the extent to which copyright law protects clothing.
The commonly-held understanding is that “useful articles” such as clothing are generally not protected by copyright law. But there are exceptions, in which the truly useful or utilitarian elements of a piece of clothing are separated from the ornamental aspects. The ornamental aspects, such as a two-dimensional design printed on fabric, are capable of being separately protected by copyright law, even though the particular garment is not eligible for copyright protection.
Various Federal Courts of Appeals have devised numerous different tests to determine what is ornamental and what is useful, and therefore, establish the scope of copyright protection for a particular piece of fashion or apparel. All those different tests have created considerable uncertainty and confusion for fashion and apparel businesses regarding whether, and to what extent, their products are protected by copyright law.
When the Court takes up the case next term, we may finally have a definitive answer whether copyright law protects clothing designs. Or not. The Supreme Court could decide to decide the case very narrowly so that its ruling only applies to this exact set of facts, leaving for another day a definitive ruling on the scope of copyright protection for clothing.
Until the Court speaks, however, the commonly-held wisdom still applies: generally, clothing is not copyrightable. (But as I said above, and like all legal issues, there are exceptions.)
Lawsuits and Delay
The second case that the Court announced it would hear next term is SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC. That case concerns the doctrine of “laches”. Laches, which rather literally connotes sitting on one’s hands, is a defense that says “the Plaintiff delayed bringing a lawsuit for so long that it would be unfair to let the lawsuit proceed now.”
This particular case that the Court decided to hear is a patent case. Previously, in 2014, the Court decided in Petrella v. Metro-Goldwyn-Mayer, Inc. that the doctrine of laches would not prevent a copyright lawsuit moving forward, but under the three-year statute of limitations that applies to copyright infringement lawsuits, the relief (such as an injunction or damages) a plaintiff may be entitled to would be limited to only the three-year period prior to the filing of the lawsuit.
Now the Court will consider whether to extend that ruling regarding laches beyond the copyright law and apply it to patent infringement cases as well.
Stay tuned to The Fine Print as we continue to monitor these and other important cases related to Creative Enterprise Law.