James P. Flynn, a Member of the Firm in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider titled “Who Are Fashion Industry and Others Cheering For?”

Following is an excerpt:

At its base, apparel has generally not been protectable under United States copyright law because apparel is considered a kind of “useful item” that cannot be protected by copyright law. The circuit court of appeals nonetheless allowed the copyright claims of Varsity Brand Inc. to proceed concerning its cheerleading uniforms because Varsity’s particular chevron-and-stripe designs were “conceptually separable” enough from the underlying clothing that they could be eligible for copyright protection. But exactly what the legal test was, or should be, for such separable-ness has proved a difficult question, one which the dissenting circuit judge said reflected “The law in this area is a mess — and it has been for a long time.” Varsity Brands, Inc. v. Star Athletica, LLC, 799 F. 3d 468, 496-97 (6thCir. 2015). The Supreme Court has taken the case to sort that out.


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