Cheerleader Uniform Design Case Helps Clarify Copyright Protection

The U.S. Supreme Court provided additional guidance on what industrial designs can and cannot be copyrighted in a recent decision involving cheerleading uniforms. Courts previously interpreted the Copyright Act as providing copyright protection for original works of art but not for industrial designs. In Star Athletica v. Varsity Brands, the court clarified where art ends and industrial design begins. The court ruled that a feature of the design of a useful article is eligible for copyright protection if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic or sculptural work either on its own or when fixed in some other tangible medium.

Varsity Brands, Inc., a leading designer and manufacturer of cheerleading uniforms, sued a rival cheerleading uniform company, Star Athletica LLC, for copyright infringement of five two-dimensional designs appearing on its uniforms. A district court ruled for Star Athletica, saying that the designs, which involved common decorations like stripes, chevrons and zigzags, did not qualify for copyright protection. It reasoned that the designs served the useful, or “utilitarian,” function of identifying the garments as “cheerleading uniforms” and therefore could not be “physically or conceptually” separated “from the utilitarian function” of the uniform.

Justice Clarence Thomas, writing for the majority, concluded that the designs on the surface of Varsity’s cheerleading uniforms satisfied the two requirements: “First, one can identify the decorations as features having pictorial, graphic or sculptural qualities. Second, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium — for example, on a painter’s canvas — they would qualify as ‘two-dimensional . . . works of . . . art.'”

Justices Stephen Breyer and Anthony Kennedy dissented, arguing that the designs on the cheerleading uniforms couldn’t be perceived as two- or three-dimensional works of art separate from the useful article.

Many in the fashion industry supported the ruling in favor of Varsity, heralding it as much needed copyright protection for designers. Previously, apparel designers had few effective means to defend their creations from people who produced nearly identical products or knockoffs and sold them for significantly less. The Court's decision could also be significant for manufacturers of uniforms and sports apparel who should reevaluate designs and color combinations on products that were previously unprotected.