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Rah! Rah! Sis Boom Bah! Supreme Court to Decide Whether Copyright Act Protects Cheerleader Uniform Designs

In August 2015, the United States Sixth Circuit Court of Appeals held in Varsity Brands, Inc.. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015), that the stripes, chevrons and other visual elements that appear on a cheerleading uniform could be protectable under United States copyright law.  While clothing is generally considered to be the kind of “useful item” that cannot be protected by copyright law, the Sixth Circuit held that the cheerleader outfit design is conceptually separable from the utilitarian aspects of the uniform.  “Because we conclude that the graphic features of Varsity’s designs can be identified separately from, and are capable of existing independently of, the utilitarian aspects of cheerleading uniforms, we hold that Varsity’s graphic designs are copyrightable subject matter,” Circuit Judge Karen Nelson Moore wrote for the majority.  A copy of the Sixth Circuit decision can be found here.

The United States Supreme Court granted certiorari on Monday, May 2 and agreed to hear the case in Star Athletica LLC v. Varsity Brands Inc., Case Number 15-866, in the Supreme Court of the United States.  We will continue to monitor this case to see if Varsity Brands or Star Athletica can take its case to the end zone.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VI, Number 126
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About this Author

Theodore Max, Attorney, Sheppard Mullin, Entertainment, Technology, Advertising
Member

Theodore C. Max is a member of the Entertainment, Technology and Advertising and Intellectual Property Practice Groups in the New York office, where he focuses on counseling clients on intellectual property issues and litigation. He is co-leader of the firm's Fashion and Apparel team. Mr. Max combines his skill and experience as a trial attorney with his knowledge of copyright, trademark and intellectual property law in servicing the firm's diverse clientele.

212.332.3602
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