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Is a Cheerleading Uniform’s Design Separable from its Utilitarian Aspects and Therefore Copyrightable?

Star Athletica V. Varsity Brands

November 2, 2016

On October 31, 2016, the Supreme Court heard arguments in the case of Star Athletica V. Varsity Brands.   

At the core of the case is whether the design of a cheerleading uniform, including patterns, graphics and colors, is eligible for copyright separate from the physical construction or utilitarian aspects of the uniform (fit, fabric, and cut).

Prior to reaching the Supreme Court, the Sixth Circuit held on August 19, 2015 that the arrangement of colors, stripes, chevrons, zigzags, and other designs on a cheerleading uniform are eligible for copyright protection in and apart from the utilitarian aspects of the uniform itself. In Varsity Brands, Inc. v. Star Athletica, LLC, 6th Cir., No. 14-1537, the Court rejected the argument that the pictorial, graphic, or sculptural features of a cheerleading uniform are inextricably intertwined with the utilitarian aspects because they serve a decorative function. The Court stated that this approach would render nearly all artwork unprotectable. The Court then extrapolated the situation to designs as found on other types of objects:

Such a holding would render nearly all artwork unprotectable. Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs. But paintings are copyrightable. Gay Toys, 703 F.2d at 973 (“But the statute clearly intends to extend copyright protection to paintings.”). It would also render the designs on laminate flooring unprotectable because the flooring would be otherwise unattractive. But the Copyright Act protects flooring designs that “hid[e] wear or other imperfections in the product.” Home Legend, 784 F.3d at 1412. And statuettes adorning the base of a lamp would not be copyrightable under this theory because they serve the function of decorating an otherwise boring lamp base. But they are copyrightable under certain circumstances. Mazer, 347 U.S. at 214.12 Finally, holding that the decorative function is a “utilitarian aspect[] of [an] article,” 17 U.S.C. § 101, would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well-established that fabric designs are eligible for copyright protection. Accord Folio Impressions, 837 F.2d at 763. We therefore conclude that a pictorial, graphic, or sculptural work’s “decorative function” does not render it unable to “be identified separately from,” or “[in]capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. 

Varsity Brands, Inc. v. Star Athletica at p. 26.


Read the full Sixth Circuit opinion. 

The plaintiff and party seeking copyright protection for its uniform designs is Varsity Brands, the foremost cheerleading uniform company in the country. Competitors of Varsity Brands and others in the broader clothing industry are closely watching this case, as the ruling will heavily impact clothing design options and the potential for future litigation.

Sarah Nagae focuses on trademark and copyright law, helping clients protect their business names, brand names, logos, artistic works and other forms of intellectual property.  In 2013, Sarah was among the first to become a Board Certified Specialist in Trademark Law in North Carolina.