If the fashion industry finds reason to cheer the Supreme Court’s pending Star Athletica, L.L.C. v. Varsity Brands, Inc. ruling later this term, it will have the Fashion Law Institute at Fordham, in part, to thank.
The institute, led by its founder and academic director Susan Scafidi, filed an amicus brief on the matter with the Supreme Court in advance of scheduled oral arguments on October 31. The brief outlined the legal justifications for maintaining copyright protection for “useful articles” in fashion, such as, but not limited to, the cheerleader uniforms central to the case. Jeffrey Trexler, adjunct professor and associate director of the institute, and Mary Kate Brennan ‘12, attorney and current Fordham fashion law LL.M. candidate, co-authored the brief, which was joined by a number of prominent fashion designers, including Narciso Rodriguez and the co-founders of Proenza Schouler, Jack McCollough and Lazaro Hernandez. Alumna Michelle Mancino Marsh ’96, a fashion law and intellectual property partner at Arent Fox LLP, served as counsel of record on the brief.
“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,” said Scafidi, who defined the field of fashion law a decade ago and who has testified before Congress on the need to extend copyright protections. The nonprofit Fashion Law Institute, launched by Scafidi in 2010, is the world’s first center dedicated to law and the business of fashion.
Since the Supreme Court’s landmark ruling in Mazer v. Stein more than 60 years ago, the U.S. Copyright Office has registered artistic or informational elements of a useful article (e.g., an original design on the front of a T-shirt). In doing so, the Copyright Office recognized a key legal doctrine known as “conceptual separability,” which differentiates the fashion’s copyrightable aspects from its utilitarian aspect (e.g., the T-shirt itself).
The Sixth Circuit Court of Appeals previously ruled that Varsity Brands’ cheerleading uniform designs were entitled to copyright, after it sued new competitor Star Athletica for infringement. The Supreme Court—if it decides to overturn the lower court ruling—could severely damage the concept of “conceptual separability,” and, in so doing, leave American designers little recourse against counterfeiters in today’s global fast-fashion environment.
“Our immediate concern is that the present case not upset over half a century of legal precedents relied upon by the fashion industry and diminish the already limited patchwork of intellectual property protection available to fashion designers,” Scafidi said.
Scafidi, who served as an expert in the case at the district court level, boiled her argument down to three images: Piet Mondrian’s series of color-block paintings from the 1920s (part of the subject matter of copyright if painted today); the YSL “Mondrian” color-block dress from 1965; and an Australian cheerleading team wearing Mondrian-inspired uniforms in 1988.
“Whether a dress replicates the design of a painting or a painting reproduces the conceptually separable design elements a dress, the result should be the same: the original design is part of the subject matter of copyright,” the brief states.
In addition to lending its expertise to the nation’s highest court, the institute’s amicus brief also provided two of its students an invaluable learning experience.
Brennan assisted Scafidi on the brief with background research and editing, and in the process learned nuances of copyright law and fashion law. Brennan previously worked with Scafidi as a dean’s fellow with the institute between 2012-2013, after graduating with her J.D. from Fordham Law in 2012.
“Working on a brief for the Supreme Court is a once-in-a-lifetime opportunity that Fordham Law School has afforded me,” Brennan said. “It’s been an incredible experience, one that I will carry with me throughout the rest of my legal career.”
J.D. student Jacqueline Lefebvre became enamored with the case in her IP and Design class and soon after began working on a note about it. The resulting note, “The Need for ‘Supreme’ Clarity: Clothing, Copyright, and Conceptual Separability,” will be published in this fall’s Intellectual Property, Media & Entertainment Law Journal.
Scafidi recruited Lefebvre, a research assistant for the institute, for the amicus project to help with sourcing and footnotes. The hands-on experience Lefebvre has received at Fordham Law through class instruction, an externship, and working on the amicus brief exceeded her expectations, she said.
“The Fashion Law Institute was the reason why I came to Fordham, so being able to support something the institute is doing that is being considered by the Supreme Court is a huge deal,” Lefebvre said.