Why a costume’s cut isn’t copyrighted but its artwork can be

Costumes made for a film, television series or stage production are designed to carry character and period, and they are also artwork that can be copied. U.S. copyright law decides which parts of a garment’s design can be protected, and the rules are narrower than many people assume.

The main rule comes from a 2017 Supreme Court decision, and Copyright Office practice was revised after that ruling and again in later years. Most of the questions come from one distinction: the artwork on a garment versus the garment itself. The sources below explain what the rule covers, what it leaves out, and where the public record is still incomplete.

Why a garment falls under the useful-article rules

Copyright law excludes useful articles, which the Copyright Alliance describes as items with a utilitarian function. Clothing is a common example. The Supreme Court’s 2017 case, Star Athletica v. Varsity Brands, concerned cheerleading uniforms, which were items of that kind.

For many years, clothing was generally refused registration on this basis. The Copyright Alliance says a 1991 Copyright Office policy decision changed part of that practice. It allowed registration of fanciful costumes that contain separable pictorial or sculptural authorship, whether that separation is physical or conceptual.

For a costume, the practical question is which parts of the design, if any, can be treated as separate from the garment’s function as clothing. The sources read for this article do not describe a separate rule for costumes made for a screen or stage production.

The 2017 ruling in brief
Star Athletica v. Varsity Brands was decided on March 22, 2017, by a 6–2 vote. The Court held that two-dimensional designs on cheerleading uniforms can be protected, while their shape and cut cannot.

The two-part test from the 2017 ruling

The Supreme Court decided Star Athletica on March 22, 2017, by a 6–2 vote. Justice Thomas wrote the majority opinion, joined by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan. Justice Ginsburg concurred only in the judgment, and Justice Breyer dissented, joined by Justice Kennedy.

Before the ruling, the federal appeals courts had taken differing approaches to separability. According to a Duane Morris summary of the decision, the Court adopted one nationwide test and chose a simpler two-step test over the five-step framework the Sixth Circuit had used.

The Copyright Alliance says the ruling abandoned the older physical separability approach. Under the new standard, a design element can be protected if it can be perceived as a two- or three-dimensional work of art separate from the garment, and if it qualifies as a protectable pictorial, graphic or sculptural work.

Under this test, the two-dimensional designs on the uniforms were held eligible for protection. The test is applied to features of a design, not to the garment as a whole.

What the ruling leaves out

The 2017 ruling protects the artwork on a garment, while leaving its cut and shape outside copyright. The uniform’s shape, cut and dimensions were not protected. According to the Duane Morris summary, the holder can prevent reproduction of the surface designs, such as chevrons, stripes and color-blocking, but cannot stop others from making a uniform with the same shape, cut and dimensions.

The Court took no position on whether the designs were original enough to be copyrighted. The dissent called them plainly unoriginal, while Justice Ginsburg pointed to the low originality threshold.

The Copyright Alliance describes surface graphic designs as protectable with only a minimal amount of creativity. That description does not resolve the question the Court left open in the 2017 case, so readers should treat originality as a separate issue from separability.

How the Copyright Office turned the test into practice

The Copyright Office published draft revisions on June 1, 2017. They changed sections 903.1, 906.8 and 924 of its Compendium of Practices, and public comments were due July 30, 2017. The revised section 924 said that registration guidance for these features was still being developed, and that the Compendium would change once that guidance was final.

The Office then released a public draft in May 2019 and revised it after 24 public comments. On January 14, 2021, a Federal Register update revised the Third Edition of the Compendium, including sections 924 and 925 on useful articles.

The 2021 revisions say copyright protects only design features that can be conceptually separated from the useful article. They also say that an article whose only practical function is to convey information, such as an x-ray, a map or a technical drawing, may not be a useful article. The Office said future editions would reflect later legal developments.

The 2017 ruling protects the artwork on a garment, while leaving its cut and shape outside copyright.

What the rule means for costumes, and what remains unclear

The 1991 policy decision described by the Copyright Alliance is the only costume-specific treatment in the sources read for this article. It indicates that a fanciful costume could be registered where it contained separable pictorial or sculptural authorship. The sources do not show how that approach carried into the 2017 test or the 2021 Compendium.

For designers, the result is mixed, according to the Duane Morris summary. Some in the industry see the ruling as limited recognition that garments can receive some copyright protection. Others see it as a missed chance to expand that protection. The same summary says whether the ruling proves to be a stalemate will in part depend on how the circuit courts apply the new test.

Whether a given costume’s artistic features pass the test depends on the design itself. The sources read here do not describe how courts or the Office have applied the test to costumes made for film or stage, and the Compendium text itself could not be read for this article.

Other protections that can apply to costume designs

The Copyright Alliance says copyright does not cover ideas, general notions of style, colors, or the cut and shape of a garment. It also says common patterns, such as chevrons, polka dots, checkerboards and houndstooth, are generally not protectable. A fabric design built from interlinked and unlinked C letters was refused registration, and a New York federal court upheld that refusal.

Colors and logos can fall under trademark law. The Copyright Alliance notes that the Office refused registration for two well-known logos, Adidas’s three-bar mark and Tommy Hilfiger’s flag logo, though trademark law may still protect logos.

A design patent can protect a garment’s cut, according to the same post. The Copyright Alliance says a design patent can block others from making fashions that resemble a sketch of the original design, which copyright cannot do.

Photo: Diliff · CC BY-SA 3.0 · via Wikimedia Commons