cheerleader uniforms

The Sixth Circuit Court of Appeals ruled that decorative designs used on cheerleading uniforms can be protected by copyright law.

Background

Varsity Brands, Inc. designs and manufactures “apparel and accessories for use in cheerleading and other athletic activities.” The company’s designers

sketch design concepts consisting of ‘original combinations, positionings, and arrangements of elements which include V’s (chevrons), lines, curves, stripes, angles, diagonals, inverted V’s, coloring, and shapes…’

As noted by the court, Varsity sought and received copyright registrations for “two-dimensional artwork” for many of its designs, including the ones shown above.

Star Athletica, LLC also makes cheerleading uniforms.

Varsity filed suit after seeing that Star was advertising cheerleading uniforms that were similar to Varsity’s registered designs, claiming copyright infringement.

Arguments

Star argued that Varsity’s copyright was not valid for the following reasons:

  • Varsity’s designs are for useful articles, which are not copyrightable.
  • The pictorial, graphic, or sculptural elements of Varsity’s designs were not physically or conceptually separable from the uniforms, making the designs ineligible for copyright protection.

Ruling

The court used a “series of questions … grounded in the … Copyright Act” to determine the copyrightability of Varsity’s designs, concluding that the graphic features of Varsity’s designs “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of [cheerleading uniforms],”and thus that they are copyrightable subject matter.

The court noted that the US Copyright Act “protects fabric designs, but not dress designs.”

Because we believe that the graphic features of Varsity’s cheerleading-uniform designs are more like fabric design than dress design, we hold that they are protectable subject matter under the Copyright Act.

The case is Varsity Brands Inc. et al. v. Star Athletica LLC.

Takeaway

Since clothing is fundementally a “useful article,” the extent to which copyrightable features of design are conceptally separable from its utilitarian aspects has long been a thorny issue. As the Sixth Circuit noted, courts have used at least nine separate approaches in determining conceptually separability. It is unclear whether the Sixth Circuit’s approach based upon “a series of questions” will prove durable.

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Leech Tishman’s Intellectual Property Group is based in Pasadena, California with a team of highly-regarded legal professionals with prosecution and litigation expertise in the fields of patent, trademark, copyright, and trade secrets.

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Photo Attribution: Court Documents.

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