Cheerleading Uniform Copyrights Backed by US Supreme Court

Francis Osborne
March 24, 2017

"And cheerleader uniforms are useful articles". The company had claimed that cheerleader uniforms sold by Star Athletica were "substantially similar" to its own.

After losing a 2010 lawsuit, Varsity Brands eventually got a favorable ruling Wednesday as the highest court of appeal said the designs were protected. Focusing heavily on the statute as a whole, the Court identified two key requirements. The Court re-emphasized, however, that a design feature itself can not constitute a useful article and still obtain copyright protection. They are, she wrote, standalone pictorial, graphic or sculptural works covered by Section 101. Without the decorations, a uniform "looks exactly like the ubiquitous little black dress", Star stated in its brief.

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Varsity Brands won copyrights for five particular designs on paper, featuring stripes, chevrons, zigzags, and color blocks arranged on its basic uniforms. First, the Court did not accept the premise that a design feature may exist independently only if the useful article from which it was extracted would remain equally useful without that design feature. "The fashion industry barely has protection over fabric prints, lace patterns, jewelry, belt buckles, or handbag clasps", says Scafidi. In Justice Ginsburg's view, the separability test was not applicable because the designs on the cheerleader outfits were not designs "of useful articles" but rather were pre-existing copyrightable pictorial or graphic works that were subsequently "reproduced on useful articles".

In a 51-page majority opinion, justice Clarence Thomas wrote that since the uniforms - similar to a t-shirt, paper towels, car, or other useful real-world items - serve a function, they can not be copyrighted. But, Thomas went on, since the Varsity Brand designs can be conceptually separated from the uniforms themselves-in other words, you can imagine the design separate from the physical uniforms-those designs qualify as two-dimensional works of art.

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