On March 22, 2017, the Supreme Court rendered its decision in what many refer to as the cheerleader uniform case.  Star Athletica, LLC v. Varsity Brands, Inc.

The Court decided whether designs on cheerleader uniforms were entitled to copyright protection.  Copyright law protects “pictorial, graphic or sculptural features” of artistic works if those features can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.  17 U.S.C. §101.  Adding a bit more clarification to the statute, the Supreme Court held that 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.

In applying this test, it is helpful to consider the designs that were at issue. Below is one of the designs:

The Supreme Court held that if the design pictured above were featured on a non-utilitarian medium, such as a painter’s canvas, it would have enough originality to be entitled to copyright protection. The Supreme Court also held that the design could be featured on a painter’s canvas without looking like a cheerleader’s uniform if one were to imagine the design without the shape of the shirt.   

It is important to consider what this decision does not do. It does not make the shape, cut and dimensions of clothing designs copyright protectable. It merely recognizes that pictorial or graphic designs on clothing may be protectable.