Cheerleading uniform copyrights backed by US Supreme Court

The U.S. Supreme Court upheld an apparel company’s copyrights on its cheerleading outfits in a ruling that bolsters the legal protections for pictures and graphic designs.

The 6-2 ruling is a victory for Varsity Brands LLC, the world’s largest cheerleading-uniform company. It lets the company press ahead with claims that smaller rival Star Athletica LLC copied five proprietary designs.

The case tested the limits of copyright protection for clothing, furniture and other items that can have both functional and distinctive ornamental aspects.

Under federal law, a design can be copyrighted if it is separable from a product’s utilitarian aspects. A federal appeals court said Varsity’s lines, zigzags and braids were conceptually separate from the uniforms’ functional attributes, making the designs eligible for copyright protection.

Justice Clarence Thomas, writing for the majority, agreed, saying the uniform design met the test of being “able to exist as its own pictorial, graphic, or sculptural work” that’s eligible for copyright protection when it’s separated from the utilitarian article.

Justices Stephen Breyer and Anthony Kennedy agreed with Thomas’ analysis of the law, but not the result. Breyer said that the images Varsity seeks protection for are simply pictures of cheerleader uniforms. Congress has declined to provide broad copyright protection to the fashion industry, though textile designs are eligible, he said.
Chevrons, Stripes

“As Varsity would have it, it would prevent its competitors from making useful three-dimensional cheerleader uniforms by submitting plainly unoriginal chevrons and stripes as cut and arranged on a useful article,” Breyer wrote. “But with that cut and arrangement, the resulting pictures on which Varsity seeks protection do not simply depict designs. They depict clothing.”

The fact that the design follows the contours of a cheerleading uniform is not a bar to copyright, Thomas said. He said that, if a design were etched or painted on a guitar and then used for an album cover, it would still look like a guitar “but the image on the cover does not ‘replicate’ the guitar as a useful article.”

The ruling is simply a “mirror image” of an established law that protects graphics, sculptures or other works of art that are subsequently applied to a useful item, Thomas said.

“The two provisions make clear that copyright protection extends to pictorial, graphic, and sculptural works regardless of whether they were created as freestanding art or as features of useful articles,” he said.

The ruling could have broad implications for the fashion industry because it gives designers “another means of protecting their ornamental designs that are affixed on useful articles like clothing,” said Jeanne Gills, an intellectual property lawyer with Foley & Lardner in Chicago.

The case is Star Athletica v. Varsity Brands, 15-866.

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