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Give Me A ©: Refashioning the Supreme Court's Decision in Star Athletica v. Varsity Into an Art-First Approach to Copyright Protection for Fashion Designers

  • Author(s): Schroeder, Jared
  • Kraeplin, Camille
  • et al.
Abstract

Fashion designers have struggled to establish their works as expressions that qualify for copyright protection. The U.S. Supreme Court’s decision in March 2017 in Star Athletica v. Varsity was less of a victory for fashion designers than it might appear. The Court’s effort to clarify and apply the “separability test” stopped short of providing the clarity needed to protect the works of fashion designers. This Article contends that this confusion can be resolved by conceptualizing fashion designs as forms of art that are often applied to useful objects, rather understanding them as useful items that, if their designs can be conceptually separated from the object, can receive protections.

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