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.



Website. Copyright Protection.


Do you have a fabulous website that YOU created, with YOUR original content? Have you thought about protecting that website and its component parts?  If you’ve not given much thought to the protection of your website, now is the time to change your thinking.
Your website, like your blog posts, books, articles, videos, screenplays, music, marketing materials other valuable content, in some cases can be protected by copyright.

Copyright for Website.

While the Copyright Office does not register websites, per se, it does allow you to register the copyrightable content that is on your website.  For example, did you know that you can register the source code, the audio visual material (e.g., videos), text, and any visual content (e.g., cartoons, photos)? Don’t wait until someone has copied your website to take action. Register it with the US Copyright Office now.

In order to obtain a copyright registration for your website, here are some things to keep in mind:

  1. Your website content MUST be original,
  2. You (not your web designer) must own the content,
  3. If you handle the registration yourself, make sure you do it right or you won’t have a valid registration,
  4. Read Copyright Office Circular 66 carefully
  5. Make sure you use the correct form,
  6. Remember, update your registration whenever you make significant revisions to your website

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.

Is Copyright Registration Necessary?


A copyright registration is notNetflix. The Bicycle Thieves. necessary. However, there are many good and different reasons why you should register your original creative content, e.g., books, articles, photographs, jewelry, music, web content, video, blog posts, and more. Here are 6 reasons:

  1. You receive a Certificate of Registration.
  2. There exists prima facie evidence that you own the copyright in question.
  3. You have the right to sue for copyright infringement.
  4. You have nationwide protection.
  5. It is easier to obtain international copyright protection.
  6. You can possibly receive statutory damages and attorneys fees.

One of the most important benefits of having a registered copyright with the U.S. Copyright Office, is that you can sue an infringer for copyright infringement. It may not seem like a big thing now, as you are not thinking about filing a lawsuit. But if, and when, the time ever comes when you need to take an infringer to court, it is better that you invest now–within 90-days after you publish your work–rather than have to pay for expedited registration fees and also risk not getting everything you deserve.  Copyright registration fees are around $35 if you do it yourself and do it online.  If you wait and register after someone starts to use your work, the costs will be considerably higher.

The other important reason to register your work immediately after you publish it is that if you ever have to sue, an attorney is more likely to take your case if they can potentially receive attorneys fees.

It is important to pursue copyright registration in a timely manner. That means, register your work within the first 3-months of publication. If you do so, you may become eligible to receive fees set by the government, what we call statutory damages. This could be of real benefit, as those fees range anywhere from $750 per infringement all the way up to $150,000 per infringement, if it’s proven that the infringer intentionally and willfully infringed your work. Now isn’t that a good reason to get that valuable creative content registered?

Finally, with a registration, you have solid ground for sending a “cease and desist” letter to any person who infringes your work.  This usually encourages  people to STOP using your work without permission, or purchase a license from you.  Sometimes the threat of a lawsuit goes a long way.  Just be careful not to threaten a lawsuit, unless you are truly ready to file that suit.

The Internet: An Amazing Communication Tool

The advent of the Internet, while a wonderful and advantageous communication tool, has created new issues for copyright owners. It has made access to creative content easy, and has also made content easy to create, easy to disseminate, easy to display, and easy to reproduce. As a result, many people think that if it is on the Internet, it is free.

People often conclude that if copyright is not mentioned when they view a creative work or there is no copyright symbol on the work that they can use it for any purpose they want.  The reality is that the work is in fact copyrighted regardless of whether the author mentions the copyright or not.

Whether it’s because they lack the knowledge or just don’t care,  copyright infringement on the Internet is rampant. So as a creator of valuable content PROTECT YOUR ASSETS!  Take the extra step to protect what you have invested time and money in creating.

And, as a general rule, if something is on the Internet and YOU didn’t create it, assume that someone else did. Assume that if someone else created it, you need permission to use it. Permission can come in the form of a license, a contract, public domain (no one owns it or the copyright has expired), or that your permission is granted through the fair use exception. CAVEAT: To take advantage of the Fair Use Doctrine, make sure you understand the rules, or risk being sued for copyright infringement.

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.

Tattoo. Body Art. Millennials.


Lawsuit. Art on Body. Tattoo.

Anyone who follows social trends knows that tattoos are the rave today, particularly among the millennial generation. But can your tattoo, the art on your body, open you up to a lawsuit, particularly for copyright infringement?

The answer may come as a big surprise to many.

Figures show that more than 20 percent of Americans have at least one tattoo, and among millennials, the figure jumps to more than 40 percent. If the tattoo is on your body, you may believe that it belongs to you, but in many cases that may not be true.

A slew of recent lawsuits by both tattoo artists and corporations should serve as a warning, especially if the tattoos in question are used to market products and services. In reality, a tattoo can meet the legal requirements for copyright protection.

Kobe Bryant. LeBron James.

A group of tattoo artists who rendered their services to high profile athletes such as Kobe Bryant and LeBron James recently filed copyright lawsuits against the video game developer that created NBA 2K. The tattoos they created on Bryant and James were used on the digital recreations of the athletes. The case is still pending in the courts.

Several years ago, the tattoo artist who created Mike Tyson’s famous face tattoo filed a copyright lawsuit against Warner Bros. Entertainment. A film produced by Warner Bros. showed a character getting a facial tattoo deemed “almost identical” to Mike Tyson’s. The artist and the film company settled the suit before the court could rule on it.

But regular, everyday people don’t have anything to worry about – right?

Wrong, people with tattoos of trademarked cartoon characters and the like are also technically susceptible to trademark infringement suits. In 2013 a New York coffee shop owner received a cease and desist letter from The New York State Department of Economic Development due to a tattoo he had on his fist, which the agency claimed violated their copyright on the iconic I ❤ NY logo. The coffee shop owner came to terms with NY State agreeing how his tattoo can be photographed and displayed.

The lesson is clear. If you are a business or an individual, you may be open to copyright lawsuits for displaying or using tattoos for marketing purposes. Yes, times are changing, and that means we need to stay informed on how, when and where we can use copyrighted material. Including “body art.”

YouTube sets up $1 million legal fund for certain creators

Copyright symbol. YouTube.

Copyright symbol. YouTube.

YouTube, the world’s largest video sharing site is no stranger to copyright controversies, including lawsuits. This is not surprising considering that approximately 82 million videos have been uploaded to the site since its inception in 2005.

Realizing that copyright law needed to keep pace with technology, the Digital Millennium Copyright Act (DCMA) was passed and signed into law in 1998. The intent of the law was to update copyright law in regards to e-commerce and electronic content providers, and to make illegal the circumvention of digital and electronic copyright protection systems.

Viacom. YouTube.

Back in 2007, Viacom, a global media company which owns the rights to a vast array of television shows and movies that air on approximately 170 networks that the company operates, sued YouTube for $1 billion. Viacom accused YouTube of facilitating “massive intentional copyright infringement,” naming approximately 160,000 clips on the service for which they held the copyright.

YouTube countered by claiming protection under the “safe harbor” provision of the DMCA. This provision shields certain companies that are indirectly involved in the distribution of content from liability. After nearly six-years of legal battles, a judge ruled in favor of YouTube in 2013.

Still, YouTube uploads continue to be removed from the site under DMCA guidelines. And YouTube and other content-sharing sites continue to straddle the fine line between copyright infringement and “fair use” law, which allows for copying content in certain limited situations.

This past week YouTube announced it would be helping content creators who are “unfairly targeted” for DMCA infractions. Fred von Lohmann, the legal director for YouTube wrote in a recent blog post on the company’s copyright page that the company will pay the legal bills for only a “handful” of creators, to start. The cap the amount of this legal fund is set at $1 million. “While we can’t offer legal protection to every video creator – or even every video that has a strong fair use defense – we’ll continue to resist legally unsupported DMCA takedowns as part of our normal processes,” wrote von Lohmann.

Meanwhile, internet advocacy groups such as The Electronic Frontier Foundation are not completely satisfied, claiming YouTube should be doing more to protect the fair use on their platform. On their website they wrote “while we would like the program to do a little bit more—for example, given that the main criteria is that a video must be clearly lawful we’d like YouTube to provide any user that meet that criteria the option of enrolling their video into the program, rather than hand-selecting which ones gets to participate.”

Legal Battles. Copyright Holder. 

The question is what will be the affect of these legal battles on both copyright holders and the public’s demand for information and entertainment. And what does the future hold for video and information sharing websites such as YouTube? Only time will tell.

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