Legal Protection for Fashion Experts
On Wednesday, June 21st, DeWitty and Associates, Chtd. attended “Fashion Design and Copyright Protection,” an event orchestrated by the Public Education and Information Division of the U.S. Copyright Office here in Washington, D.C. This standing room only event was a rare opportunity for artists and fashion creators of all kinds to join industry professionals in a review for legal protection in fashion. The discussion focused on the Star Athletica Decision (Star Athletica, L. L. C. v. Varsity Brands, Inc., et al, 580 U.S. ___ 2017,) a case handed down by the U.S. Supreme Court in March 2017. As the host explained, the Supreme Court held that features incorporated into the designs of useful articles can be assigned copyright protection if the features can be perceived as a 2-D or 3-D work of art separate from the article, and they would qualify as a protectable pictoral, graphic, or sculptural work if they were imagined separate from the article itself. For the industry, this decision effectively ended the physical separability test which previously governed such decisions, and enacted a test of conceptual separability – evaluating features on the basis that they can be imagined separately from articles. In addition, the court decided that articles do not have to remain useful after the features are removed.
The effects of the Star Athletica decision have already begun to reverberate throughout the fashion industry. Before ending the session, the host highlighted the recent claims brought against Forever 21 by the German company Puma for patent, trade dress, and copyright infringement of several of the shoes in Rihanna’s “Fenty” collection (Puma SE v. Forever 21, Inc., 2:17-cv-02523 (C.D. Cal). According to their complaint filed on March 31st, Puma’s “Creeper,” sneaker, the “Bow Slide” sandal, and “Fur Slide” sandal have been copied by Forever 21 in an effort to produce items that are confusingly similar and infringe upon the Fenty Trade Dress. In a nutshell, Puma is seeking an end to Forever 21’s sales of the items in question, fees and damages for the case, and a judgement for the infringement of their patent, trade dress, and copyrights. This will be a case in to watch in the coming months.