Recently, the Sixth Circuit Court of Appeals ("Sixth Circuit") in Varsity Brands, Inc. v. Star Athletica, LLC, decided that clothing designs (in this case, a cheerleading uniform) can be protected by copyright under the United States Copyright Act, which limits the protection of "useful articles." The Sixth Circuit's decision is important because this may lead to significant change in the copyright protection of clothing design. The Sixth Circuit noted that courts "have struggled mightily" to determine whether designs on useful articles are copyrightable when those features cannot be removed physically from the useful article.

Judge McKeague commented in dissent that the law in the area of clothing design "is a mess" and called for reform, stating that "[i]t is apparent that either Congress or the Supreme Court (or both) must clarify copyright law with respect to garment design… [and] until we get much needed clarification, courts will continue to struggle and the business world will continue to be handicapped by the uncertainty of the law." This decision increases the likelihood that reform will soon come.

Background on the case:

Varsity Brands, Inc. ("Varsity") attained copyright registrations for designs it used on its cheerleading uniforms. Star Athletica, LLC ("Star") sold cheerleading uniforms that looked "a lot like" Varsity's five registered designs. Varsity sued Star for copyright infringement. Star argued that Varsity's cheerleading uniform designs are "useful articles" and not protected by copyright.

Decision:

The Sixth Circuit held that Varsity's cheerleading uniform designs are copyrightable subject matter. The Court reasoned 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]," because "the arrangement of stripes, chevrons, color blocks, and zigzags are wholly unnecessary to the performance of the garment's ability to cover the body, permit free movement, and wick moisture."

The Copyright Act limits protection of "useful articles", which (per copyright code):

• has "an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information"; and
• is protectable "only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."