Cheerleader Uniforms Can Be Copyrighted

By: Scarinci Hollenbeck

The United States Supreme Court recently issued a ruling regarding whether or not designs on cheerleader uniforms could be protected under copyright law.

SCOTUS Rules That Cheerleader Uniforms Are Copyrightable

The ruling ends longstanding and widespread disagreements on the issue regarding design elements and whether or not they are eligible for copyright protection. Learn about the Supreme Court decision regarding cheerleader uniforms and copyright, and what it means for intellectual property moving forward.

The Case in Question

By a vote of 6-2, the Supreme Court ruled in favor of the largest supplier of cheerleading uniforms, Varsity Brands, Inc. In the case, Varsity accused rival company Star Athletica of replicating key elements of Varsity’s designs and thus, violating their intellectual property.

The case raised once more the idea of whether such design elements on clothing could be copyrighted. The court ruled that this was indeed possible, based on the idea that the designs at issue were “conceptually separable” from the underlying piece of clothing.

Uniform Designs and Copyright

Typically, clothing falls outside of copyright protection as the Copyright Act does not allow for protection of “useful” items or articles, which clothing qualifies as. However, copyright law will protect design elements of useful articles that are “conceptually separable” from the article itself. In 2015, a lower court applied this idea and found Varsity’s specific designs to be conceptually unique enough to be “separable” from the garment itself, and thus eligible for protection.

The Supreme Court had to determine which elements were conceptually separable, and further delineate the test to use for making such determination, since lower courts have applied at least nine different approaches over the years.

The New Standard

In a statement authored by Clarence Thomas, all prior lower court tests were discarded and a new benchmark was established. In order to be separable, a design element in a garment must:

  • (1) Be a work of art that is separate from the article, and;
  • (2) Must still be protectable if it can be imagined separately from the article.

This offers a unified pathway for courts to follow in the future in determining what is and is not protectable as part of a design element for any useful article, clothing or otherwise. The standard follows a literal interpretation of Section 101 of the Copyright Act and dismisses the idea that other factors beyond the language of the law should be taken into account.

The Important Takeaway

The Supreme Court’s ruling, though it did side with Varsity in the case, does not expand copyright protection to garments in general. Rather, it clarified the applicable standard to use in determining whether copyright protection applies. In taking this approach, the courts sidestepped concerns of both fashion companies and consumer groups, who worried that such a ruling might either harm marketing tools, damage creative innovation or create monopolies by making actual articles of clothing copyrightable. The law, in general, provides a slight win for protections of fashion design but doesn’t serve to rewrite copyright law.

It also doesn’t grant Varsity an overt win; it simply rules that the company’s designs aren’t excluded from copyright protection. Whether Star Athletica violated their copyright is still an issue for lower courts to decide.

Copyright law is a complex and tricky thing, and protecting your rights requires the most experienced and knowledgeable attorneys available. If you’re in New Jersey, New York or D.C. and need help protecting your intellectual property, turn to the copyright attorneys at Scarinci Hollenbeck. Give us a call for a consult on your case today!

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