Fashion law has recently been put to the test in the US. While a definitive legal ruling on denim-on-denim (i.e. the 'Texan tuxedo') is some time away, the US Supreme Court has turned its attention to less pressing matters - namely, whether design features of clothing are eligible for copyright protection.

In the Star Athletica v Varsity Brands case, the Supreme Court held that aesthetic design elements of clothing (or other useful articles) may be capable of copyright protection, provided they could be perceived as individual, copyrightable artistic works if separated out from the garment as a whole. Here, the element in question was the chevron / stripe pattern on a cheerleading uniform, and this was considered to be a severable design that was protected by copyright as a conceptual 'artistic work'.

It seems that the Supreme Court's decision came down to a distinction between purely functional design elements and those which could theoretically be works of art in their own right (albeit not in the league of a van Gogh or Picasso). For example, the length of a shirt sleeve is probably not a copyrightable element, but the pattern on a dress might be.

New Zealand's comparatively enlightened copyright regime has long recognised and protected designers' rights in their designs, and is a bit of a global outlier in that regard. The protections, despite being very unfashionably named - protecting 'industrially applied' artistic works - are effective. Fashion brand G-Star, for example, has been able to protect its jean designs in New Zealand despite being unable to do so in other countries such as Australia. In G-Star v Jeans West, retailer Jeans West was found to have infringed G-Star's copyright by copying its 'Elwood' jeans. Jeans West's conduct was deemed sufficiently outrageous that despite only selling 63 infringing pairs of jeans, it was required to pay an additional $50,000 in damages to G-Star. 

So, while the US courts might only just have come to the realisation that protecting designers' rights is a good idea, and the fashion industry is scrambling to come to terms with the implications of thisthe ruling won't have an impact on New Zealand's legal landscape. However it is an interesting example of copyright law in action and provides a great excuse to read Vogue articles on a Friday afternoon in the office...