On March 22, 2017, the Supreme Court decided that federal copyright protection applies to cheerleading-apparel designs. The decision, which has far-reaching implications for the fashion and sports industries, sets a new and uniform standard for determining whether features of useful articles (such as clothing) are entitled to copyright protection.
This case arises out of copyright infringement litigation between two competitors in the cheerleading-apparel industry. Petitioner Star Athletica, LLC (“Star”), created in 2010, is a relatively new entrant to the cheerleading-uniform market. By contrast, respondent Varsity Brands, Inc. (“Varsity”) is the world’s largest manufacturer and distributor of cheerleading and dance-team uniforms and accessories—”[n]early every uniform sold or camp attended by high school or college cheerleaders is part of Varsity’s vast empire of pep.”1 Shortly after Star published its first cheerleading-uniform catalogue, Varsity sued for copyright infringement, alleging that Star’s cheerleader uniforms infringed the copyrights Varsity had registered in its two-dimensional cheerleader-uniform drawings and photos. See two examples of Varsity’s copyright-registered designs below:
The United States District Court for the Western District of Tennessee determined on summary judgment that copyright protection did not extend to Varsity’s designs because the designs could not be conceptually separated from the functional aspects of the objects themselves.2 In other words, a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and color-blocks.3 Varsity appealed.
The United States Court of Appeals for the Sixth Circuit reversed the district court’s judgment, finding Varsity’s designs copyrightable.4
And, now, the Supreme Court has affirmed the Sixth Circuit’s decision.5
Justice Thomas, writing for the Court, articulated a two-part test for determining when a feature incorporated into the design of a useful article (such as clothing) is eligible for copyright protection:
[The feature is eligible for copyright protection only if it] (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, graphical, 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.6
Justice Thomas’s legal reasoning is strictly based on statutory construction of 17 U.S.C. § 101, which affords limited protection for the “pictorial, graphic, or sculptural features” of the “design of a useful article” if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”7 Neither his majority opinion, nor Justice Ginsburg’s concurring opinion,8 comment on the potentially far-reaching implications of the Court’s holding...
