“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” —Justice Oliver Wendell Holmes, Bleistein v. Donaldson Lithographic Co. (1903)

The fashion industry represents a multi-trillion dollar global business—casting a wide net and covering a range of industries from agriculture to manufacturing to design. It’s an industry almost every consumer engages with on a daily basis. Although it is dominated by global brands and large-scale manufacturing, independent entrepreneurs play a significant role. But what protections exist for the fashion designer? How does the administration of copyright law affect the balance of artistic innovation and competition?

At its core, copyright exists to provide an economic incentive for authors—including fashion designers—to invest the time and capital into creating new artful designs. Without copyright law, the incentive for fashion designers to invest in new designs diminishes because the possibility of a fair return on their investments declines. This concern manifests in the administration of copyright law as an exercise in managing the trade-off between artistic protection and innovation. Because the Constitution grants Congress the power “to promote the progress of science and useful arts,” the creation of new works furthers its aim. This creation requires a balanced system that rewards creativity and fosters innovation without impeding competition.

Most recently, in the 2017 case Star Athletica v. Varsity Brands, the Supreme Court upset this balance by establishing broad protection for designs of cheerleading uniforms through its interpretation of the separability doctrine in the Copyright Act of 1976. Separability exists to guarantee “the notion that an otherwise copyrightable item should not be denied protection just because it is employed as part of a useful article.” In short, if a design can be perceived as having pictorial, graphic, or sculptural features that can be identified and separated from the utilitarian function of the work, then it is eligible for copyright protection. Before Star Athletica, the test for separability consisted of a physical and conceptual undertaking that resulted in a multitude of approaches and years of conflict among the lower courts. Now, if an article’s aesthetic outweighs its utility, then it is likely eligible for protection. This new approach, based solely on the statute’s text, creates a highly subjective rule that will be difficult to apply in practice. It also requires judges to engage in the type of aesthetic discrimination that Justice Holmes warned against over a century ago, in Bleistein v. Donaldson Lithographing Co. (1903).

An analysis of three cases post-Star Athletica sheds light on the applicability of the new separability standard. First, Design Ideas v. Meijer (C.D. Ill. June 20, 2017) involved the copying of a clothespin design that contained a bird sculpture. This case demonstrated the concern about framing the utilitarian aspect of the article. Because of a narrow framing, the court valued the aesthetic of the bird sculpture over any utilitarian qualities it might possess with respect to the clothespin, ultimately allowing copyright protection. Second, Jetmax v. Big Lots (S.D.N.Y. Aug. 28, 2017) involved the copying of a light set that contained an ornamental covering. Similar to Design Ideas, the court narrowly framed the utilitarian aspect of the light set as providing light. It also implicitly devalued the utility of the ornamental covering—to protect the lightbulb—compared with its aesthetic and in relation to the utility of a light set. Such a narrow framing of the useful article broadens the copyright protection available for the aesthetic nature of a work. Finally, Triangl v. Lingzhi (S.D.N.Y. June 22, 2017) involved a Chinese manufacturer who copied and sold infringing swimsuit designs. This case, although it misapplied Star Athletica, extended protection to an arguably unoriginal design. In all three cases, the copyright owner won.

While Star Athletica is recent and few cases have followed, it will likely play a major role in copyright protection for fashion design going forward. Broad protection for copyright owners can pose significant threats to the delicate administration of copyright law. As Justice Thomas premised in his majority opinion, Star Athletica was not “a free-ranging search for the best copyright policy.” As such, Congress bears the responsibility of resolving any remaining uncertainty to prevent rampant monopolies. While the current separability doctrine may benefit copyright owners, it may hinder creation of additional works in the future by limiting the amount of material available in the public domain, thus harming the artistic benefits to society copyright law seeks to incentivize.