Designs on Cheerleading Uniforms Protectable by U.S. Copyright Law

Star Athletica, LLC v. Varsity Brands, Inc.

Varsity Brands holds many U.S. Copyright registrations for designs appearing on cheerleading and other uniforms. Varsity sued Star Athletica for copyright infringement when Varsity's designs appeared on Star Athletica's uniforms.

At trial, the court issued a summary judgment stating that no infringement had occurred because designs appearing on cheerleader uniforms could not be conceptually or physically separated from the uniforms and were therefore ineligible for copyright protection. An appeal to the 6th Circuit by Varsity was successful and the summary judgment was reversed. Star Athletica then appealed to the U.S. Supreme Court. Arguments were held on October 31, 2016 and an Order issued March 22, 2017.

The Supreme Court upheld the 6th Circuit's reversal and held that "a feature incorporated into the design of a useful article is eligible for copyright protection under the Copyright Act of 1976 only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) 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; that test is satisfied here."

The Court began its Order with:

"The Copyright Act of 1976 makes “pictorial, graphic, or sculptural features” of the “design of a useful article” eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U. S. C. §101."

This case goes to the protectability of industrial designs. Here, the designs consisted of chevrons, zigzags and stripes. The Supreme Court stated:

"Applying the proper test here, the surface decorations on the cheerleading uniforms are separable and therefore eligible for copyright protection. First, the decorations can be identified as features having pictorial, graphic, or sculptural qualities. Second, if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art under §101. Imaginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uni- form itself.."

Practical Pointer: 

U.S. Copyright law protects an original work of authorship reduced to a tangible medium. 

This decision appears to indicate that the level of "originality" and "authorship" can be quite modest. For graphic designs appearing on a "useful article" such as clothing, if the designs can be reproduced on paper or other two-dimensional form - separately from the useful article, a claim of copyright can be made.

This article is for informational purposes only and should not be considered legal advice. If you have questions or concerns about your copyright rights, or other legal rights, contact a qualified legal practitioner.