Snell & Wilmer Understanding what makes you unique.®
The Supreme Court’s Fashionable Case: Implications for Expanding
Copyright Protection to Apparel
February 3, 2017
by Trisha Dyan Farmer Lau
Currently before the United States Supreme Court is the question: “[w]hat is the appropriate test to
determine when a feature of the design of a useful article is protectable under § 101 of the Copyright Act.”1 Put
another way, and as formulated by the Sixth Circuit who previously decided the case, “Are cheerleading uniforms
truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?”2
The Copyright Act protects original works of authorship xed in any tangible medium of expression,
including pictorial, graphic, and sculptural works.3 The design of a useful article—“an article having an intrinsic
utilitarian function that is not merely to portray the appearance of the article or to convey information”—is
considered a pictorial, graphic, or sculptural work aorded copyright protection “only if, and to the extent that, such
design incorporates pictorial, graphic, or sculptural features that can be identied separately from, and are capable
of existing independently of, the utilitarian aspects of the article.”4 Courts have attempted to decipher and apply
this statutory language, however, the current law is murky at best.
The Sixth Circuit, like many other circuits, developed a test permitting copyright protection for components
conceptually separable from the utilitarian function of clothing in Varsity Brands, Inc. v. Star Athletica, LLC.5 If upheld
by the Supreme Court, this new test could help stabilize the law and potentially oer designers more robust
protection. It also, however, threatens to unearth new risks, such as limiting customer options to copyright holders.
Background
Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc. (collectively
“Varsity”) sell cheerleading uniforms, warm-ups, and accessories, and own registered copyrights for various graphic
designs that appear on their products.6 Varsity’s designers sketch original design concepts comprised of “original
combinations, positionings, and arrangements of elements which include Vs (chevrons), lines, curves, stripes,
angles, diagonals, inverted Vs, coloring, and shapes, without considering functionality or ease of producing.”7 Once
Varsity has selected a design for production, the design is re-created using one of four various methods used to
create a cheerleading uniform.8 Varsity’s customers may choose a design concept among the designs oered
before selecting the shape, colors, and braiding for the uniform.9 Star-Athletica, LLC (“Star”) also sells cheerleading
attire and accessories that bear graphic designs.10
Varsity sued Star for copyright infringement for selling, distributing, and advertising goods bearing
substantially similar designs for which Varsity has copyrights.11 After the close of discovery, both parties moved
for summary judgment.12 Star argued that Varsity did not have a valid copyright in the designs allegedly infringed
1 Brief for Petitioner, Star Athletica, L.L.C. v. Varsity Brands, Inc., 2016 WL 94219 (No. 15-866).
2 Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 470 (6th Cir. 2015).
3 17 U.S.C. § 102(a) (2010).
4 Id. § 101. A two-part inquiry is required to determine whether an article is protectable under these provisions: (1) whether the design is
of a useful article and if so, (2) whether the design of the useful article incorporates “pictorial, graphic, or sculptural features that can be
identied separately from, and are capable of existing independently of, the utilitarian aspects of the [useful] article.” Varsity Brands, 799
F.3d at 481.
5 799 F.3d at 487-89.
6 Id. at 470-71.
7 Id. at 471.
8 Id.
9 Id.
10 Id. at 470-71.
11 Id. Five of Varsity’s copyrights were asserted. Id. at 474-75.
12 Id. at 475.
