V-I-C-T-O-R-Y for Varsity Brands, Inc. in Supreme Court Battle Over Decorative Elements of Cheerleading Uniforms by Alexandra Taylor, Esq.

On Wednesday, the U.S. Supreme Court issued its highly-anticipated Opinion on the copyrightability of design elements found in plaintiff’s cheerleading uniforms. In its initial lawsuit filed in 2010, Varsity Brands, Inc., the country’s largest cheerleading supplier, argued that Star Athletica, L.L.C. infringed its copyrighted designs consisting of chevrons, stripes, various line designs, and color blocks. Under the Copyright Act, “useful items”, such as an underlying garment, are barred from copyright protection. The case brought differing rulings in the lower courts as to whether the decorative elements in the garments were separable enough from the underlying garment to be eligible for copyright protection.

After “widespread disagreement” in the lower courts as to the ability to copyright such designs, the Supreme Court established a two-part test for determining when a design element in a useful item can be protected:

A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (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, graphic, 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.

The Supreme Court found that the test was satisfied in the instant case. Expectedly, the fashion industry lobbied for a lenient standard to allow more copyright protection, while consumer groups sought a more strict approach to foster competition. Though the Supreme Court limited the holding to two- or three-dimensional works of art, and not copyright protection for the underlying garment itself, the Court’s ruling has wide spread implications for fashion and related industries for companies and individuals to take advantage of.

For the full Opinion, the case is Star Athletica, L.L.C. v. Varsity Brands, Inc., et al., No. 15-866 (U.S. March 22, 2017).

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