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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 US 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.
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 US 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.
Jack Hicks is a Partner in Womble Carlyle’s Intellectual Property Practice Group.
