Cheerleading Uniforms At Center of Supreme Court Copyright Infringement Suit

October begins a new term for the Supreme Court and one of the cases on their docket is a copyright infringement case involving cheerleading uniforms.

In Star Athletica, LLC v. Varsity Brands, Inc., Varsity Brands, Inc., an athletic uniform manufacturer sued Star Athletica, LLC , another athletic uniform manufacturer, for selling uniforms that look similar to Varsity Brands’ copyrighted design.

According to the case, Varsity Brands sued because they state Star Athletica’s uniforms with color blocks, stripes and chevrons look quite similar to their copyright design. Star Athletica argued that Varsity Brands’ copyrights are invalid because the designs are not physically or conceptually separable from the uniforms, which cannot be copyrighted.

According to the United States Copyright Act, an “useful article” or items with an “intrinsic utilitarian function” like a chair, bike rack, brief case or uniform may obtain copyright protection, but only for elements that can be identified separately from and are capable of existing independently of, the utilitarian aspect of the article.

Oftentimes, a useful article’s components may not be copyrightable either, however, when the design “incorporates pictorial, graphic or sculptural works” that are separate from the article’s “utilitarian aspects,” those aspects may be copyrighted.

Although Varsity Brands argued the design was purely aesthetic and therefore copyrightable and a lower court sided with them, other circuit courts have come to the opposite decision in similar cases, upholding that uniform designs may not be copyrighted because they are not separate from the uniform.

The majority opinion identified nine specific approaches plus hybrids that various courts and the copyright office have formulated over the years to analyze how copyrightable designs may be separated from the utilitarian elements. The majority defined the function of the cheerleading uniform to cover the body, permit free movement and wick moisture,’ and concluded the design elements should be protected.

The dissent, however, characterized the law of copyright protection for design elements of useful articles as “a mess.” They further commented that clarity was needed to alleviate courts’ confusion as well as protect businesses’ interests.

The case is ongoing and may have a major affect on all types of athletic uniforms. If your company is involved in a copyright infringement case, it is important to obtain experienced counsel. Call our offices today for an initial evaluation.

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