April 20, 2021

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“Gimme a C!” (for Copyright): Supreme Court to Weigh Cheerleader Apparel Copyright Case

Are cheerleading outfits functional “useful items” that normally are ineligible for copyright protection? Or do they contain distinct design elements that allow for copyright ownership?

The U.S. Supreme Court will take up this question when they consider Varsity Brands Inc. et al. v. Star Athletica LLC. The outcome will be of great interest to all types of apparel manufacturers.

Cheerleader Uniform Designs

Varsity Brands Inc. is the world’s largest maker of cheerleading apparel, and the company is pursuing copyright infringement claims against rival manufacturer Star Athletica LLC. In the lawsuit, Varsity Brands claims that the stripes, chevrons and other visual design elements on their uniforms are copyright eligible.

However, Star Athletica contends that clothing, as a “useful item,” is not eligible for copyright protection, and that the design elements are simply a component of the cheerleading uniform. Attorneys for Star Athletica said that by removing those elements, the garment no longer would be a cheerleading outfit.

A lower court sided with Star Athletica. But in August 2015, in a split 2-1 ruling, a Sixth Circuit panel ruled that decorative designs on cheerleading uniforms are, in fact, eligible for copyright protection.

The panel also declared that the uniform’s decorative designs (stripes, chevrons, etc.) were “conceptually separable” from the uniform itself.

In the majority ruling, Circuit Judge Karen Nelson Moore wrote that under Star Athletica’s interpretation, a painting “would be unprotectable because the painting decorates the room in which it hangs. But paintings are copyrightable.”

But Circuit Judge David McKeague, writing for the dissent, said that “Without stripes, braids, and chevrons, we are left with a blank white pleated skirt and crop top. As the district court recognized, the reasonable observer would not associate this blank outfit with cheerleading. This may be appropriate attire for a match at the All England Lawn Tennis Club, but not for a member of a cheerleading squad.”

Varsity Brands has the support of the U.S. Department of Justice in this case. In September, the Solicitor General’s office filed an amicus brief in the case, stating “Nothing in the Copyright Act, which incorporates pre-existing regulatory language that authorized the registration of many designs of useful articles, supports a presumption against the copyrightability of a work that can be characterized as such a design.”

The Supreme Court is scheduled to hear oral arguments in Varsity Brands Inc. et al. v. Star Athletica LLC on Oct. 31st.

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Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VI, Number 305
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About this Author

Jack B. Hicks, Womble Carlyle Law Firm, Intellectual Property Protection Attorney
Partner

A licensed patent attorney with 25 years of experience, Jack Hicks counsels clients to determine the type and scope of intellectual property protection that meets their business goals. A substantial portion of his practice includes the preparation and prosecution of U.S. and foreign patent and trademark applications. Although Jack started his career as a successful trial lawyer, his practice currently focuses upon counseling clients in national and international intellectual property evaluation, protection and enforcement. Jack’s honors and awards include being ranked...

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