By: Lawson Turner

Following the Supreme Court’s decision in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S.Ct. 1002 (2017), this blog argues that the aesthetic aspects of some camouflage patterns, regardless of use, should be copyrightable.

Camouflage (“camo”) is kind of like the pineapple-pizza of fabrics:  some just cannot see its positive characteristics.  These nay-sayers are wrong.  After simply seeing camo in a parade, service members or their families will readily identify the military service member’s branch of service.  Some younger viewers may decide to join the military after seeing the leafy fatigues stroll down the avenue.  I know I did.

Background:  Camouflage as a Fabric Design

Military camouflage stands for a certain caliber of training, a duty to one’s country, and a career of sacrifice.  The primary purpose of early camouflage was concealment.[i]  However, recent technological developments like thermal sensors create a problem for designers:  no matter how intricate and deceptive the designs are, a thermal sensor could detect body heat.  This innovation is one of the reasons that forced a switch in the primary purposes of military camouflage:  identifying who is on your side and recruiting new troops.

Civilian camouflage is also “multi-functional,” representing an ironic take on military use of camouflage.[ii]  In fact, some authors trace the modern use of the Battle Dress Uniform pattern as a neutral pattern (like plaid or paisley) to veterans who were opposed to the Vietnam War.[iii]  After those veterans repurposed the pattern as a symbol for their disagreement with the atrocities of the war, civilians that disagreed with all war or with the establishment in general wore it ironically.[iv]  Eventually, the fashion industry picked up the pattern, incorporating the cheap fabric into its fashion lines.[v]  Today, camouflage is iconic and here to stay.[vi]

Camouflage (from the French word camoufleur, meaning “to hide”[vii]) is a magnificent example of a thing that is both functional and fashionable.  It was initially drawn by teams of French painters recruited to conceal military equipment and soldiers in the wilderness by painting ornate flora designs.[viii]  Though originally intended to conceal soldiers, today designers incorporate the patterns into their haute couture.  

In addition to its use in high fashion, main streets across the world are increasingly seeing both hunters and trend-setters wear camo for purely aesthetic purposes.  As Lisa Aiken, the Fashion Director for Moda Operadi, put it, “[p]art of the appeal of the print is that it is easy to wear and versatile.  It is a form of power dressing.”[ix]  Although today the patterns are designed more often for leisure, looks, and military recruiting,[x] designers have limited their patterns’ protection to patent.  Today that confinement to patent protection should change, allowing copyright protection.  That change is due to the U.S. Supreme Court’s Star Athletica decision, where the Court held that certain designs with utilitarian aspects (limited to patent protection) could still be copyrighted for their aesthetic aspects.[xi]  Until that case is overruled or superseded by a congressional amendment, designers of camouflage patterns could seek both copyright andpatent protection.

Protecting Camouflage Patterns

While the Navy’s blue pixelated camouflage achieved trademark rights,[xii] currently designers of camouflage patterns—both military and civilian alike—are not seeking copyright protection.  Notwithstanding the protections under the Stolen Valor Act of 2013[xiii] and a section of the Uniform Code of Military Justice (UCMJ),[xiv] designers have registered the patterns solely through the patent process—a time-consuming and expensive process.  This blog emphasizes a new protection that camouflage designers overlook:  Camouflage patterns, separated from the devices that incorporate them, could be copyrighted.  The inherent aesthetic quality of all unique civilian camouflage patterns and some military camouflage patterns could be copyrighted based on the conceptual separability analysis outlined in the Star Athletica decision. 

Original fabric designs like plaids[xv] and paisleys[xvi] receive copyright protection.  For decades, designers of these fabric overlays have found refuge from copycats through copyright law.  Scotland even has a special copyright service solely for protecting plaid and tartan patterns.[xvii]  Today, you might see plaid and paisley on things like pocket squares and other tangible items.[xviii]   Though one could not physically separate a plaid design from the pocket square device, they could conceive of the pattern separate from the fabric.  And although there is a requirement that the plaid or paisley pattern be more than “a simple combination of basic geometric shapes and mere variations of coloration,” any unique camouflage pattern surpasses this standard and passes into “a creative design that goes beyond the mere display of a few geometric shapes in a preordained or obvious arrangement.”[xix]  

A Key Issue:  Conceptually Separating the Functional from the Aesthetic

An important part of copyrighting camouflage is how to separate an item’s functional aspects from its aesthetic aspects.  In Mazer v. Stein, the Supreme Court authored an opinion that deliberately granted copyright to the base of a lamp that was shaped like a dancer’s leg.[xx]  That decision explained a conundrum that still occurs:  what do you do when you have an object that has both utilitarian/functional qualities and aesthetic qualities, like a camouflage pattern.  Over half a century later, the Supreme Court provided clarity on the subject.

The Supreme Court’s 6-2 Star Athletica opinion, authored by Justice Clarence Thomas and joined by several liberal and conservative justices, stirred debate about what it meant to be a copyrightable two-dimensional fabric design.  The item at issue—cheerleading uniforms— possessed functional qualities traditionally protected by patent law.[xxi] However, the Court found that the uniforms also had some aesthetic qualities which are traditionally protected by copyright.  This dilemma required the Court’s attention, as lower courts had established nine different tests.[xxii]

Camouflage patterns and designs, whether in the field or on the runway, have characteristics similar to the cheerleading uniforms that were debated in the Court.  For example, the Court and the dissent acknowledged, apart from the outline of the garment, the lines and chevrons on the cheerleading uniform worked to make a wearer appear taller and slimmer.[xxiii]  Similarly, camouflage presents optical illusions:  making the wearer disappear in certain terrain.[xxiv] Another example is the uniform’s ability to recognize a member of a team.  Much like a cheerleading uniform alerts a spectator that a cheerleader drives the team spirit, a camouflage uniform allows a servicemember to recognize teammates and drives esprit de corps both on and off the battlefield.  And similar to military camouflage, civilian camouflage worn on the streets of New York may allow an individual to identify with a certain ideology or brand that a wearer represents.  Finally, a cheerleading uniform makes both the people who wear it and the people who see it feel a certain way about the design.[xxv]  In relation to camouflage, both the type worn by members of the military and people who don Moschino or Michael Kors[xxvi] make the person wearing it feel good about wearing the fabric design.[xxvii]

Some authors have opined that disputes over camouflage could never use the Court’s separability analysis, while others have argued that the Court’s analysis simply created more issues.[xxviii]  For example, Mala Chatterjee determined that a camouflage design on a purse could receive copyright protection under the new separability analysis of Star Athletica, while camo on a uniform could not because it would lose concealment capabilities.[xxix]  The author noted that “If we conceive of the uniform without the camouflage print, then what we imagine is not functionally identical to the actual uniform because it is not able to successfully hide the soldier in the woods.”[xxx]  

Chatterjee misinterpreted the Court’s decision, however.  If you remove the camouflage from the uniform, it essentially makes the debate over the pattern’s aesthetic a nullity, leaving a mono-colored garment without accent (but perhaps still capable of concealment, unless the underlying fabric is a high-visibility color).[xxxi]  This is not the appropriate analysis.  As discussed below, the appropriate analysis is more like peeling the pattern from the object.

In the majority opinion for Star Athletica, Justice Thomas explains that “the [pictorial, graphic, or sculptural] feature [to be capable of existing independently of . . . the utilitarian aspects of the article] must be able to exist as its own pictorial, graphic, or sculptural work as defined in § 101 once it is imagined apart from the useful article.”[xxxii]  Later in the decision he emphasizes, “[t]o be clear, the only feature of the [military] uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric.”[xxxiii]  If camo is a “work of art,” it is copyrightable.

Chatterjee got the analysis wrong.  The uniform maintaining its functional quality is not important to the analysis, but rather it is the camo pattern’s ability to exist independently of the uniform that is paramount.[xxxiv]  One can imagine peeling off a camouflage pattern from a uniform and placing it on canvas, a t-shirt, or shorts.  One can even see a uniform coated in a camouflage pattern and imagine the pattern alone in their head.  Even the dissent by Justice Breyer directly stated “one could copyright the floral design on a soupspoon but one could not copyright the shape of the spoon itself,” showing that in either the Court’s opinion or the dissent, a camouflage pattern is eligible for copyright.[xxxv]

Other authors criticized the Court’s reasoning in Star Athletica by saying that the opinion provides little clarity on the conceptual separability analysis.[xxxvi]  In their article Fashion’s Function in Intellectual Property Law, Christopher Buccafusco and Jeanne Fromer noted shortcomings in the way the Court came to its conclusion.[xxxvii]  These include the allegedly improper treatment of the separability criteria as “intellectually simple and doctrinally weak”,[xxxviii] that the Court “utterly failed to understand the statute and its requirement that decisionmakers identify distinct expressive and functional features of the claimed work,”[xxxix] and even that the Court “failed to appreciate how rigorously Congress intended copyright law to treat functionality.”[xl]  While these arguments are convincing, the Court was interpreting what the law is, even using a method of interpretation that courts across the U.S. have sanctioned for almost 300 years.[xli]  The method of interpreting the text of statutes literally is practical and efficient, and if Congress thinks that the Court’s interpretation “rigorously [misinterpreted how] Congress intended copyright law to treat functionality” the legislature could amend the statute.[xlii]  While the Court’s method of analysis might further muddle a confusing area of intellectual property law, the language of the opinion is what decisionmakers and practitioners must continue to follow.  If a change is needed, it must be through overruling Star Athletica or through legislative amendment.  Until we have such an action, copyright should be applicable to camouflage’s aesthetic aspect

[i] Hardy Blechman, Disruptive Pattern Material: An Encyclopedia of camouflage (2004).

[ii]  Id. at 685.

[iii] Tim Newark, Camouflage 164 (Thames & Hudson Inc., 2007) (explaining how artists used the patterns associated with protest and anti-establishment groups after being worn by the Vietnam Veterans Against the War).

[iv] Id. at 164-175.

[v] Blechman, supra note i, at 418.

[vi] See Megan Gustashaw, Camouflage Is Back (Yes, Again) and Here’s How to Wear It, GQ.com (Aug. 7, 2018), https://www.gq.com/story/camouflage-is-back-again (alluding to the consistent revival of camouflage in fashion).

[vii] See M.J. Stephey, A Brief History of Camouflage, Time (June 22, 2009), http://content.time.com/time/nation/article/0,8599,1906083,00.html (providing a brief history of camouflage); John Hulsey & Ann Trusty, Les Camoufleurs: The Fine Art of War, Artists Network, https://www.artistsnetwork.com/artist-life/fine-art-war/.

[viii] Blechman, supra note i, at 25 (explaining the etymology of camouflage in makeup).

[ix] Kristen Bateman, Why Fall 2019’s Camouflage Fashion Trend Is Being Endorsed By Major Designers, The Zoe Report (Sep. 18, 2019), https://www.thezoereport.com/p/why-fall-2019s-camouflage-fashion-trend-is-being-endorsed-by-major-designers-18753907https://www.thezoereport.com/p/why-fall-2019s-camouflage-fashion-trend-is-being-endorsed-by-major-designers-18753907.

[x] See Huge Gye, How U.S. Army spent $5BILLION on ‘failed’ pixel camouflage… because they ‘wanted to look cooler than Marines’, Daily Mail.com (June 25, 2012, 7:25 PM), https://www.dailymail.co.uk/news/article-2164686/How-U-S-Army-spent-5BILLION-failed-pixel-camouflage–wanted-look-cooler-Marines.html (explaining the issues with Army ACU pattern); Eloise Lee, The Army Is Eyeing These Cool New Camouflage Patterns, Business Insider (Mar. 2, 2012, 11:53 AM), https://www.businessinsider.com/the-army-is-eyeing-these-cool-new-camouflage-patterns-2012-3(highlighting pattern design features); Anna LaPlaca, The Controversial Camo Pants Trend is Officially Back, Who What Wear (June 11, 2019), https://www.whowhatwear.com/camo-pants-trend (“Wait, are camo pants actually cool and I’ve been missing out?”).

[xi] Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S.Ct. 1002 (2017).

[xii] See In re Navy Exchange Service Command, 2012 WL 4832272, *4-*5 (T.T.A.B. 2012) (nonbinding decision) (granting a Trademark for the U.S. Navy’s blue pixelated uniform, noting that the pattern is not de jure functional because there was no patent disclosing nor advertisement touting the pattern’s utilitarian advantages; there are alternative designs available to competitors; and the design results in a relatively simple or cheap method of manufacturing).

[xiii] Stolen Valor Act of 2013, H.R. 258, 113th Cong. §2 (2013).

[xiv] See 10 U.S.C.A. §§ 772-73.

[xv] See generally L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012) (abrogated in non-pertinent part by Unicolors, Inc. v. H&M Hemmes Mauritz, L.P., 959 F.3d 1194 (9th Cir. 2020)) (explaining that designs as similar as floral pattern are copyrighted). See also Emily F. Evitt, Copyright protection of fabric designs, Lexology (Nov. 5, 2012), https://www.lexology.com/library/detail.aspx?g=f40060c7-8e95-41fa-8672-3bea89ac9a9c (explaining that you can copyright fabric designs).

[xvi] See generally L.A. Printex Indus., Inc., 676 F.3d 841 (explaining that designs as similar as floral pattern are copyrighted).

[xvii] Home, The Scottish Register of Tartans, https://www.tartanregister.gov.uk/index (last visited June 29, 2020) (depicting a state-sponsored registry where you can research tartan patterns and register a design).

[xviii] Compare Eton.com, Pink Ancient Inspired Paisley Print Pocket Square, https://www.etonshirts.com/us/pink-ancient-inspired-paisley-print-pocket-square-a000318995500 (last visited June 29, 2020) (depicting a pink pocket square with a paisley pattern) with Otaa.com, Camouflage Army Green Pocket Square, https://www.otaa.com/collections/camouflage-pocket-squares/products/camouflage-army-green-pocket-square (last visited June 29, 2020) (depicting an Army green pocket square). 

[xix] Letter from the U.S. Copyright Office Review Board to Mr. David May on his Second Request for Reconsideration for Refusal to Register Hastens Sangar AB Fabric Pattern (Oct. 5, 2018) (on file with author).

[xx] Mazer v. Stein, 347 U.S. 201, 217 (1954).

[xxi] Star Athletica, 137 S.Ct. at 1015.

[xxii] Varsity Brands, Inc. v. Star Athletica, L.L.C., 799 F.3d 468, 484-86 (6th Cir. 2015) (explaining each of the nine conceptual separability tests).

[xxiii] Star Athletica, 137 S.Ct. at 1013 (citing the Petitioner’s Brief at 38, 48).

[xxiv] Newark, supra note iii, at 8, 17.

[xxv] See generally Leigh Buchanan, The Battle for the Cheerleading-Uniform Industry Is Surprisingly Cutthroat and Appropriately Glittery, Slate.com (Feb. 22, 2016, 3:34 PM), https://slate.com/business/2016/02/rebel-wants-to-disrupt-the-surprisingly-entrenched-cheerleader-uniform-industry.html (explaining the dazzling effect of cheer uniforms).

[xxvi] See Amy De Klerk, Has camouflage finally become cool again?, Harper’s Bazaar (June 20, 2018), https://www.harpersbazaar.com/uk/fashion/fashion-news/a21705422/camouflage-trend-2018/ (explaining that high end fashion designers are now incorporating camouflage patterns).

[xxvii] See Charles Manning, 8 Dos and Don’ts of Wearing Camo, Cosmopolitan (Dec. 25, 2013), https://www.cosmopolitan.com/style-beauty/fashion/advice/a17548/dos-and-donts-for-wearing-camo/ (offering tips about how to wear camouflage fashionably in your daily wear).

[xxviii] See Martin Tartre, Useful Or Useless?: A Modern Perspective On The Protectability Of Useful Articles In Domestic & Foreign Copyright Law, 45 AIPLA Q. J. 467 (2017); Christopher Buccafusco & Jeanne C. Fromer, Fashion’s Function in Intellectual Property Law, 93 Notre Dame L. Rev. 51 (2017); Mala Chatterjee, Note, Conceptual Separability as Conceivability: A Philosophical Analysis of the Useful Articles Doctrine, 93 N.Y.U.L. Rev. 558 (2018).

[xxix] Mala Chatterjee, Note, Conceptual Separability as Conceivability: A Philosophical Analysis of the Useful Articles Doctrine, 93 N.Y.U.L. Rev. 558, 568-69 (2018).

[xxx] Id. at 569.

[xxxi] Peter Suciu, Khaki: The First Widespread Military Camouflage, Warfare History Network (Oct. 28, 2016),https://warfarehistorynetwork.com/2016/10/28/khaki-the-first-widespread-military-camouflage/ (explaining that khaki was the first camouflage).

[xxxii] Star Athletica, 137 S.Ct. at 1010.

[xxxiii] Id. at 1013 (alterations applied).

[xxxiv] Id. at 1010 (“The decisionmaker must determine that the separately identified feature has the capacity to exist apart from the utilitarian aspects of the article.”).

[xxxv] Id. at 1033.

[xxxvi] Christopher Buccafusco & Jeanne C. Fromer, Fashion’s Function in Intellectual Property Law, 93 Notre Dame L. Rev. 51, 85-93 (2017).

[xxxvii] Buccafusco, supra note xxxvi.

[xxxviii] Buccafusco, supra note xxxvi, at 90.

[xxxix] Buccafusco, supra note xxxvi, at 91.

[xl] Buccafusco, supra note xxxvi, at 91.

[xli] See Marbury v. Madison, 1 Cranch 137, 177 (U.S. 1803) (stating that it is “emphatically the province and duty of the judicial department to say what the law is.”).

[xlii] See Matter of Wiggains, 848 F.3d 655, 661 (5th Cir, 2017) (“Where a statute’s language is “plain and unambiguous, it must be given effect.”); Christopher Buccafusco & Jeanne C. Fromer, Fashion’s Function in Intellectual Property Law, 93 Notre Dame L. Rev. 51, 91 (2017).

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