SCOTUS Determines That Decorations on Cheerleading Uniforms Are Conceptually Separable From Uniforms and Eligible For Copyright Protection

by Brinks Gilson & Lione

Brinks Gilson & Lione

On March 22, 2017, the Supreme Court of the United States issued a 6-2 ruling in Star Athletica, L.L.C. v. Varsity Brands, Inc., et al., holding the decorative elements on Varsity Brands’ cheerleading uniforms were conceptually separable two-dimensional graphic works, and therefore eligible for copyright protection.

In so holding, the Court affirmed the Court of Appeals for the Sixth Circuit’s finding that the decorations could be “identified separately” and were “capable of existing independently” of the cheerleading uniforms, and thus protectable under Section 101 of the Copyright Act.

By way of background, Varsity Brands, Inc., et al., design, manufacture, and sell cheerleading uniforms, and own over 200 U.S. copyright registrations for various two-dimensional decorations that appear on the surface of their uniforms (e.g. “chevrons…curves, stripes…coloring, and shapes”).  Varsity Brands sued Star Athletica, L.L.C., a rival cheerleading uniform manufacturer and retailer, for infringing five of their registered copyrights.  Star Athletica relied on the commonly held proposition that apparel is usually outside the scope of the Copyright Act, which bars protection for “useful articles”, and argued that the Varsity Brands design patterns were useful as applied to cheerleading uniforms. While the District Court granted Star Athletica summary judgment, the Sixth Circuit reversed in favor of Varsity Brands, and the Supreme Court affirmed.

The Supreme Court majority found the holdings in Mazer v. Stein, 347 U.S. 201 (1954)[1] and the “mirror image” protections offered under the Copyright Act’s Sections 101 and 113(a) [2] instructive in its application of a separability analysis to Varsity Brands’ uniforms’ decorative elements.  The Supreme Court reasoned if “a design would have been copyrightable as a standalone pictorial, graphic, or sculptural work, it is copyrightable if created first as part of a useful article.”  As a result, the Court held that a feature of the design of a useful article is eligible for copyright if: (1) when identified and imagined apart from the useful article (2) it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.

The Court’s application of this test led it to conclude that: (1) Varsity Brands’ decorations were identifiable as features having pictorial, graphic, or sculptural qualities; and (2) the ability to separate Varsity Brands’ decorations from the surface of its uniforms and apply them to another medium (e.g. a painter’s canvas) qualify the decorations as a “two dimensional work of art,” as defined by Section 101.  The Court determined further that “imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself.”  The Court thus concluded “the decorations [were] therefore separable from the uniforms and eligible for copyright protection.”  Justice Breyer, in dissent, expressed his views to the contrary, arguing the decorations were “not separable because imaginatively removing them from the uniforms and placing them in some other medium…would create ‘pictures of cheerleader uniforms.’”[3]

The Court’s holding summarily rejected the notion that “a useful article must remain after [an] artistic feature has been imaginatively separated from the article,” effectively abandoning the distinction between “physical” and “conceptual” separability previously adopted by some courts.  The Court also rejected consideration of additional factors, such as the marketability of the decorative element or the author’s intent in creating the decoration. 

The Court’s ruling in Star Athletica clarified the boundaries of copyright protection for decorative elements applied to utilitarian articles.

[1] Mazer v. Stein, in which a statuette intended as a lamp base was found copyrightable, held that (1) respondents held a copyright in the statuette despite its use as a lamp base, and (2) whether the statuette was initially created as a freestanding sculpture or as a lamp base was irrelevant to the copyright inquiry. 201 U.S. at 214; 218-19.

[2] The Court found Section 101 of the Copyright Act to be “in essence, the mirror image of Section 113(a),” reasoning “whereas Section 113(a) protects a work…first fixed in some tangible medium other than a useful article and subsequently applied to a useful article, Section 101 protects art first fixed in the medium of a useful article.”

[3] Justice Ginsberg, in concurrence with the judgment, disagreed with the majority’s opinion, stating the majority’s separability test under Section 101 was “unwarranted” because the decorations at issue are not, themselves, useful articles, but are instead “copyrightable pictorial or graphic works reproduced on useful articles.”


Written by:

Brinks Gilson & Lione

Brinks Gilson & Lione on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.