Reason to Cheer – SCOTUS Suits Up to Hear Copyright Clash Over Cheerleading Uniforms

Dorsey & Whitney LLP

Hold onto your pom-poms, copyright fans.  On May 2, 2016, the U.S. Supreme Court granted certiorari to address a question that has vexed lower courts across the land: What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?  We will soon know the answer.

The case is Star Athletica, LLC v. Varsity Brands, a dispute between two rival companies that manufacture cheerleading uniforms.   The central issue in the case is whether Varsity Brands’ registered copyrights in its uniforms are valid and enforceable.  As one might expect, the uniforms contain a number of “stripes, chevrons, and zigzags.” The trial court found these designs were not separable from the uniforms themselves.   According to the trial court, if you strip away those elements to see if they can exist separately, the cheerleading uniform fails to exist.  Thus, the trial court found the designs were simply indispensable to the functionality of the uniforms.

The 6th Circuit reversed, giving Varsity Brands reason to cheer.  The Court held the design elements on the uniforms could exist independently.  It observed that Varsity Brands used these designs not just on uniforms, but different types of clothing such as t-shirts, warm-ups, and jackets.  Additionally, the “interchangeability” of the various designs on the surface of the uniforms did not affect how the uniforms functioned.  Additionally, “nothing (save perhaps good taste) prevents Varsity from printing or painting its designs, framing them, and hanging the resulting prints on the wall as art.”  The dissenting judge implored the Supreme Court to step into the breach when he noted that “[t]he law in this area is a mess—and it has been for a long time.”

While the case involves the narrow issue of cheerleading uniforms, the Supreme Court’s decision could have far-reaching effects beyond the land of tumbles, flips, and pyramid displays.   The ruling may very well affect how federal courts analyze copyright protection involving designs on any utilitarian objects, including uniforms, automobiles, or coffee tables.

Varsity Brands may be ahead for now, but we will see if that lead holds up.

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Dorsey & Whitney LLP

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