The Supreme Court has agreed to settle a question that Star Athletica claims is “the single most vexing, unresolved question in all of copyright”:

…whether an element of a useful article is conceptually separable from the article and, therefore, protectable.

As a general rule, you can’t get a copyright for a “useful article.” You CAN get a copyright for a work that portrays a useful article, such as a drawing, but that protection doesn’t extend to the object itself. As explained on the US government’s copyright website,

For example, a drawing or photograph of an automobile or a dress design may be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.

Clothes in general are treated as “useful articles.” This allows clothing chains such as Gap or H&M to quickly turn out clothes that look very similar to the latest fashion trends without getting into legal trouble.

But there are limits: generally speaking, the Copyright Office has been willing to register copyrights for certain aspects of a useful object:

Thus, a useful article may have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware could be protected by copyright, but the design of the chair or flatware itself could not.

But how do you tell what’s a copyrightable “creative” element from what’s “useful” and not eligible for copyright protection?

It seems that no one really knows. The courts have come up with ten different theories on how to separate the creative aspects from the non-creative aspects of a useful article.

The Supreme Court may be on the verge of bringing some clarity to this issue.

Varsity Brands and Star Athletica both manufacture cheerleading uniforms. Such uniforms are clearly “useful articles,” but they also have “creative elements” such as different kinds of graphic designs including stripes, color blocks, zig zags, etc.

Varsity Brands sued Star Athletica for copyright infringement. The Sixth Circuit Court of Appeals ruled that certain graphic elements are protectable by copyright, and that Star Athletica was guilty of copyright infringement. Star Athletica appealed to the Supreme Court, which has agreed to hear the case.

Anyone in clothing-related industries will be interested in the decision.