Copyright. Supreme Court. Is Fashion protectable?


Fashion. Copyright.

The Supreme Court ruled on copyright and fashion.  Can fashion be protected by copyright? This landmark copyright case will impact the fashion design industry for decades to come. This case began 10 years ago when Varsity Brands, Inc. sued Star Athletica, LLC for copyright infringement. Both companies supply uniforms and other accessories for sport related events. The lawsuit centered on a copyrighted two-dimensional stripe pattern and colors used on Varsity Brand cheerleading uniforms which they claimed Star Athletica infringed upon.

fashion. copyright.

fashion. copyright.

The case was originally heard by a federal  district court sitting in Memphis, TN in 2014, where Judge Robert Cleland ruled that the designs were utilitarian, and since utilitarian designs are not subject to copyright law, the case was dismissed.


Varsity Brands appealed the ruling and the case went to the Sixth Circuit Court of Appeals in Cincinnati, where the district court ruling was reversed in a 2 to 1 decision. Among other findings, the court found that the designs in question could be separated from the utilitarian aspects of the uniform, and that the designs could stand on their own separate from the cheerleading uniforms, thus eligible for copyright protection.

Is Fashion Protected by Copyright?

The case then made its way up to the Supreme Court, where finally, a ruling was announced this Wednesday. Varsity Brands came up victorious, once again.  In short,  Judge Thomas, who delivered the opinion of the Court, affirmed the decision of the Sixth Circuit  Court, holding that

“a  feature  incorporated  into  the  design  of  a  useful  article  is  eligible  for copyright  protection  only  if  the  feature  (1)  can  be  perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable  pictorial,  graphic,  or  sculptural  work-either  on  its own  or  fixed  in  some  other  tangible  medium  of  expression if  it  were  imagined  separately  from  the  useful  article  into which  it  is  incorporated.”  The Court held that the test was satisfied in this case.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles. Feel free to subscribe to my newsletter.



What is Actually Protected by Copyright?



We all know that that any original work of art or authorship, which has been reduced to a tangible format is entitled to copyright protection. But what exactly does that entail?

Here is a short list of items that can, and should be protected by copyright:

If you are a musician, who has created original music, then you should protect the following:

  1. The lyrics to the songs
  2. The melodies
  3. Finished recordings

If you are a writer, who has created original content, then you should protect the following:

  1. Articles
  2. Books
  3. Blog posts

If you are a trainer/consultant/coach, who has created original content, then you should protect the following:

  1. Training materials
  2. Manuals

If you are a dancer or choreographer, who has created original content, then you should protect the following:

  1. Choreographed works

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles. Feel free to subscribe to my newsletter.



Trademark? Copyright?


What is the difference between a Trademark and a Copyright?

While speaking at conferences  and webinars a frequent legal question that continuously  seems to come up is the difference between a trademark and screen-shot-2017-01-08-at-6-59-07-pmcopyright.

And there is indeed a distinction between a copyright and a trademark. And although both are forms of intellectual property, they each are distinctly different types of protection.


Copyright – is a legal form of protection afforded to any original work of art or authorship that has been reduced to a tangible form. Examples again are books, articles, eBooks, photos, videos, poems, jewelry, and choreographed works. For more information on copyright, take a look at this page and check out the U.S. Copyright Office website.


Trademark – a name, word, phrase, logo, or a combination of those things that identifies the source of a product or a service. Examples are Nike, Microsoft, Apple, the golden arches, the Nike swoosh symbol. For more information on trademark, take a look at this page and check out the U.S. Patent & Trademark Office website.

If your logo is important to you, and if it is at the core of your business, you should speak with a lawyer on a one to one basis and get some specific legal advice regarding your situation. Any information provided here is purely general informational and not legal advice.

You can read more in detail on the distinctions of both on the United States Patent  & Trademark Office website here.

Until next time, I’m Attorney Francine Ward providing you with useful information to help you protect what’s yours. If you have a question you want me to answer in general terms, feel free to post the question on the comment section.  You can also connect with me through my Legal Facebook Page, my Legal Twitter Page, one of my Google+ Circles, or through one of my LinkedIn Group discussion.

The Walking Dead. Trademark Infringement.


Just in time for Halloween, the producer of the hit cable TV series, The Walking Dead, has filed a Trademark infringement lawsuit over the use of the name ‘Valhalla.’

fotolia_29963865_xsTrademark Lawsuit.

Valhalla Entertainment, the company behind The Walking Dead series, as well as two spinoffs of the popular show, Fear The Walking Dead and Talking Dead, filed the trademark suit against a company that is calling itself, Valhalla Studios.

Adding fuel to the lawsuit is the fact that Valhalla Studios opened up shop right in Atlanta, Georgia where The Walking Dead is produced. The suit states that unauthorized use of the name (Valhalla), which was registered in 1997, causes confusion and a misleading association with the two companies.

Wrongful Profits.

Besides trademark infringement, the lawsuit also sites unfair competition, deceptive trade practices and trademark dilution, as well as an unspecified amount of “wrongful” profits, actual and enhanced damages and legal fees and costs.

Ryan Millsap, the CEO of Valhalla Studios said he was surprised to hear about the lawsuit, saying he and his partners thought they were choosing a generic name whose roots stem from Viking lore. The company is investing roughly $70 million to build 9 sound stages on a 53 acre lot right outside of Atlanta. Millsap said his lawyers were in negotiation for over a month with Valhalla Entertainment regarding the name and was convinced they would come to an amicable agreement.


Was this a simply a coincidence of a movie production company moving into the same area where a hit cable show is produced and innocently choosing the same name as the entertainment company that produces the show? Or is Valhalla Studios intentionally attempting to create confusion and ride the coattails of the popular production?

What are your thoughts?

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McDonald’s. Copyright Lawsuit. Artist Dash Snow.


Street Brand Art.



The late New York artist, Dash Snow, was well known in art circles for his “street brand” art, which included photography, collage and graffiti. Dash died in a New York City hotel in 2009 of a drug overdose at age 27. Recently, Jade Berreau his girlfriend at the time of his death and mother of his child, and executor of his estate, filed a copyright infringement lawsuit against fast-food giant, McDonald’s.

Graffiti Themed Art.

The suit, filed in federal court in California, alleges that McDonald’s is using Snow’s artwork in hundreds of their restaurants without permission or compensation. The art adorns the walls of many of their “graffiti themed” restaurants throughout the United States and even Europe. The suit also states that McDonald’s is using the late artist’s iconic signature pseudonym, ‘SACE.’ The lawsuit was brought after McDonald’s allegedly ignored requests from the Dash estate to remove the artwork from their restaurants when it first became known in June of 2016.

Within the complaint, Berreau points out that at the time of his death, Dash was an acclaimed artist whose work sold for hundreds of thousands of dollars at high-end auction houses. It also states that within the McDonald’s restaurants in question, the artist’s work is the most prominently displayed, and the only work from an acclaimed artist, and that at least on article appeared in the media where Snow’s name was mentioned in connection with the décor, giving a false impression of an endorsement.

McDonald’s has yet to comment on the suit.

There have been a slew of copyright lawsuits in recent years bought by artists against corporations over use of artwork. In 2014, graffiti artist Maya Hayuk filed a copyright lawsuit against the luxury accessory company, Coach, for using her “graffiti art” in a photo shoot. And in 2015 she filed a copyright suit against Starbucks for using her art in a Frappuccino campaign. The lawsuit against Coach was eventually dismissed.

It’s astounding how many people and big corporations still don’t seem to understand the fact that art, in all its forms, is afforded copyright protection under U.S. law. Using it without permission is not a smart thing to do and can trigger costly and time-consuming lawsuits.

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles.