At any given fast fashion store, there may be a near exact replica of a ‘designer’ clothing item that sells for four times less than the amount it would at a luxury retailer. Wait—isn’t that illegal? After the Supreme Court’s landmark separability test created in Star Athletica, the answer may soon be yes. Fast fashion chains make their money exploiting the historical lack of copyright protection in the fashion industry. Lamps, shoes, and clothes have long been held ineligible for copyright protection because the utilitarian features are inseparable from the artistic. In other words, the part of clothing that is functional (such as, the cut of a t-shirt including a neck and two arm holes) may not be copyrighted. This is because a copyright would prevent others within the industry from also creating t-shirts with this classic shape that serves the utilitarian purpose of covering the body. However, after the Supreme Court’s landmark separability test created in Star Athletica, the Court has said that artistic elements of clothing are eligible for copyright protection. So long as the artistic elements, such as chevrons and stripes on a cheerleading uniform, are separable from the utilitarian elements, clothing may qualify for copyright protection. This new separability test provides greater copyright eligibility for clothing than ever before, and thus greater incentive to bring actions against those in the knockoff market. This comment discusses the implications of the new separability test on the fashion and knockoff industries through a historical overview and real-world applications.
Star Athletica Tells the Fashion Industry to Knock-It-Off with the Knockoffs,
46 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol46/iss2/4