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Cheerleader Uniform Designs Protectable Under Copyright Act

The Supreme Court recently held in Star Athletica, L.L.C. v. Varsity Brands, Inc., that the designs on certain cheerleader uniforms may be protected copyrights. The 6-2 decision clarified the test to be applied when determining whether a feature incorporated into the design of a useful article would be eligible for copyright protection.

Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc., plaintiffs below, hold over 200 United States copyrights for two-dimensional designs on cheerleading uniforms and other apparel. They sued Star Athletica, L.L.C., a company that also sells cheerleading apparel, alleging that Star Athletica infringed on certain of those copyrights.

In the lower court, the Western District of Tennessee determined that the designs at issue were utilitarian in that they served the function of identifying the garments as cheerleading uniforms. As such, the designs were not eligible for copyright protection because they could not be physically or conceptually separated from the utilitarian function of the cheerleading uniform.

The Court of Appeals for the Sixth Circuit reversed, determining that the designs were “separately identifiable,” because they could appear side-by-side with a blank cheerleading uniform or, for example, could be hung on the wall as a framed work of art.

The case then went up to the U.S. Supreme Court.  The Supreme Court, in deciding the issue, set forth a two-part test to determine whether a feature of a useful article would be eligible for copyright protection. The first prong of the test is whether the feature could be perceived as a two- or three-dimensional work of art separate from the useful article. The second prong asks whether the feature would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. (The question of whether the features are copyrightable, that is, whether they are sufficiently original to be copyrightable or whether other prerequisites for a valid copyright have been met, was not before the court.)

In analyzing the cheerleading uniforms in the case, the court first found that the decorations on the uniform had graphical qualities, and could qualify as two dimensional works of art if the particular arrangements of stripes, chevrons, and colors, were taken off the uniform and applied to, for example, a painter’s canvas. The court noted that the respondent had applied the designs to other media, including different types of clothing without reproducing the uniform.

As such, the court found that uniform designs were separable from the uniforms and therefore could be protected under the copyright law.  (The court did not opine on whether the designs were original enough to qualify for copyright protection.)   

The majority opinion also dispensed with a number of objections from the petitioner, amicus curiae, and dissent. For example, Justice Breyer argued in dissent that removing the designs and placing them on a canvas would result in no more than a, “picture of the cheerleader uniforms.” However, the mere fact that some work corresponds to the shape or type of surface to which it is applied is no barrier to copyright protection, according to the majority opinion. 

The case is Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866 (2017), with Justice Thomas writing for the majority.

© 2017 Proskauer Rose LLP.

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