Fashion Law Institute and Arent Fox File Amicus Brief on Behalf of Designers in Supreme Court Copyright Case

Michelle Mancino Marsh, a Fashion Law and Intellectual Property partner at Arent Fox LLP, served as counsel of record on the brief, which was co-authored by Susan Scafidi, founder and academic director of the Fashion Law Institute; Jeff Trexler, the Institute’s Associate Director; and Mary Kate Brennan, an attorney and candidate for an LL.M. degree in Fashion Law at Fordham. The Supreme Court has scheduled oral arguments in this case for October 31, 2016. 

The US Copyright Act does not provide protection for functional aspects of clothing, but this case could bring greater clarity to copyright protection for the aesthetic elements of clothing and costume design. A number of prominent fashion designers joined the Fashion Law Institute’s brief in an effort to secure much-needed clarity. The designers include Jack McCollough and Lazaro Hernandez, founders and creative directors of Proenza Schouler; Narciso Rodriguez; Maria Cornejo, creative director and founder, and Marysia Woroniecka, president, of Zero + Maria Cornejo; Jeffrey Banks; Barry Kieselstein-Cord; Melissa Joy Manning; Keanan Duffty, and Nathalie Doucet, founder of Arts of Fashion Foundation.

“The designers on this brief played key roles in the effort to persuade Congress to extend copyright protection to fashion designs and have worked to raise awareness about the issue of intellectual property protection and fashion,” said Professor Scafidi. “The brief’s primary intent is to explain why the Supreme Court should not roll back the small amount of copyright protection the fashion industry already has for things like fabric prints and jewelry.”

“With the limited scope of copyright protection traditionally recognized for fashion designs under US law, the fashion industry has come to rely on this longstanding protection for separable elements of expressive design,” says Ms. Marsh. “Our hope is that the Court will acknowledge the Copyright Act’s established protection for aesthetic and information-bearing designs and merely provides some clarity on the flexibility of the standard to determine what qualifies for protection.”

In response to an infringement claim, Star Athletica argued that Varsity Brands’ copyrights were invalid because they were un-protectable designs of useful articles, and not separable from the uniforms themselves. The Western District of Tennessee in Memphis agreed, but the Sixth Circuit Court of Appeals overturned the ruling in 2015. Star Athletica petitioned the Supreme Court to rule on an appropriate method of determining when a feature of a useful article is protectable under the Copyright Act.

The Fashion Law Institute is the world’s first center dedicated to law and the business of fashion. A 501(c)(3) nonprofit organization created with the generous support and advice of the Council of Fashion Designers of America and its president, Diane von Furstenberg, and based at Fordham Law School, it offers training for the fashion lawyers and designers of the future, provides free legal services for design students and professionals, and shares information and assistance on issues facing the fashion industry. Professor Scafidi, who pioneered the field of fashion law, founded the Institute and serves as its academic director.

Arent Fox is one of the premier US law firms representing fashion and design houses, apparel manufacturers and retailers, and luxury goods companies. Its attorneys act as outside general counsel and regulatory and retail counsel for a number of well-known designer brands such as Diane von Furstenberg, Escada, Lacoste, Diesel, Hugo Boss, and Fila, providing advice on all aspects of the business at every phase of a product’s lifecycle, beginning with the creation of a design and continuing through to marketing and distribution of the product.