The U.S. Supreme Court on Monday said “bring it on!” to a copyright dispute over the design of high school and college cheerleader uniforms between the industry leader and an upstart company.
The upstart, six-year-old Star Athletica LLC, contends that Varsity Brands Inc., the leader in cheerleader uniforms, copyrights hundreds of designs and photos of cheerleader uniforms, then sues competitors for similar designs that Varsity claims infringe its copyrights.
“The net result is inflated uniform prices, to the detriment of families everywhere,” Star Athletica, based in Chesterfield, Mo., says in a brief filed with the high court in Star Athletica LLC v. Varsity Brands Inc. (Case No. 15-866).
Varsity Brands, founded in 1974, has revenues of more than $300 million from cheerleading uniforms, camps, and competitions, what Fortune magazine in 2012 called “a vast empire of pep.”
Varsity Brands and its corporate sibling, school yearbook publisher Herff Jones, were acquired by a private equity group in 2014.
The legal dispute is an intricate battle over copyright, which is available for things like books, movies, and sculptures, but is generally not available for “useful articles” such as garments, chairs, and lamps. But copyright can extend to “subcomponents” of an article capable of being “identified separately from, and . . . existing independently of, the utilitarian aspects of the article,” as federal copyright law puts it.
This battle stems from Varsity Brands’ efforts to gain copyright protection for the design of stripes, chevrons, zigzags, and color blocks that are on its uniforms. After some initial resistance from the U.S. Copyright Office, which argued that Varsity Brands was trying to register clothing designs, the office in 2009 agreed to issue copyrights for some of the company’s add-ons.
Varsity Brands sued Star Athletica after it considered Star to be marketing cheerleading uniforms that looked a lot its own registered designs. Star countered that Varsity’s copyrights were invalid.
A federal district court ruled for Star Athletica, but a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 for Varsity Brands last year. (One of the five designs at issue is pictured here.)
Star Athletica appealed to the Supreme Court, arguing that its case was a good vehicle for settling what is the appropriate test for determining when a component feature of a useful article is entitled to copyright protection. The company said there are some 10 tests used by lower courts currently. (One such lower court case involved whether decorative elements of a prom dress could be copyrighted; a federal appeals court said no.)
In asking the Supreme Court to take up its case, Star Athletica said it was about more than the chevrons and zigzags of cheerleader uniforms. The 6th Circuit ruling in its case created uncertainty for the entire $330 billion per year U.S. apparel industry, the upstart said.
Varsity Brands unsuccessfully urged the justices not to take up the case.
“The court should reject [Star Athletica’s] invitation to review the metaphysics of cheerleading uniforms,” Varsity Brands said in its brief.
“Unsurprisingly, there is no circuit split on the question whether a cheerleading uniform without ‘braids, chevrons, and color blocks’ is really a cheerleading uniform,” the brief added. “And deciding a case that turns on fact-bound assertions about the ‘essence’ of cheerleading uniforms would offer little guidance to lower courts about general copyright principles.”
The two sides will have all summer to practice their cheers—and arguments. The case will be argued sometime during the court’s next term.
A version of this news article first appeared in The School Law Blog.