Law360, New York (November 24, 2015, 10:29 AM EST) -- In a now closely followed fashion copyright infringement matter (Varsity Brands Inc., et al. v. Star Athletica LLC),[1] the Sixth Circuit held last August that certain design elements of copyright registered cheerleading uniforms were indeed copyrightable because those elements were conceptually separable from the uniforms themselves. One member of the three-judge panel dissented, agreeing instead with the district judge who found no such separability between the design elements and utilitarian nature of the clothing, and concluded that the designs were not protectable. Thus, of the four reviewing federal judges, two found the designs copyrightable, and two found that they were not. But there is one thing the judges seemingly agreed on: namely, that the state of the analytical tools available to jurists, practitioners and the industry to determine fashion copyrightability is inadequate at best, and ripe for congressional leadership or U.S. Supreme Court guidance. If history is any guide, legislative action is unlikely....