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Law & Courts

High Court Backs Copyright Protection for Cheerleader Uniform Designs

By Mark Walsh — March 23, 2017 2 min read
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The U.S. Supreme Court on Wednesday gave a V for victory to the dominant provider of cheerleader uniforms for schools, colleges, and spirit teams, ruling that some of its uniform designs were protected under federal copyright law.

The losing squad was an upstart company, Star Athletica, that was sued for copyright infringement by Varsity Brands, the market leader in the cheerleader-uniform industry.

Star Athletica has claimed that Varsity Brands copyrights hundreds of designs and photos of cheerleader uniforms, then sues competitors for infringement over similar designs. That drives up the prices of cheerleader uniforms for schools and families, the upstart says.

If that’s true, prices for such uniforms may be heading upwards. In Star Athletica LLC v. Varsity Brands Inc. (Case No. 15-866), the court ruled 6-2 that Varsity Brands’ uniform designs at issue may be copyrighted.

The issue in the case is rather technical, dealing with what legal test courts should use to determine whether a component of a useful article such as a garment is eligible for copyright protection.

Varsity Brands won copyrights for five particular designs on paper, featuring stripes, chevrons, zigzags, and color blocks arranged on its basic uniforms. The actual uniforms are customized with school names and logos.

Star Athletica, which was sued by Varsity, argued that its competitor’s copyrights were invalid because the designs were necessary to the uniforms’ essential function of identifying the wearer as a cheerleader.

Writing for the majority on the Supreme Court, Justice Clarence Thomas said an artistic feature of the design of a useful article may be copyrighted if it “can be perceived as a two- or three-dimensional work of art separate from the useful article” and “would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.”

Varsity Brands’ designs met that test, Thomas said. His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Sonia Sotomayor, and Elena Kagan. Justice Ruth Bader Ginsburg concurred in the outcome but wrote a separate opinion.

Justice Stephen G. Breyer, in a dissent joined by Justice Anthony M. Kennedy, said “the pictures on which Varsity seeks protection do not simply depict designs. They depict clothing. They depict the useful articles of which the designs are inextricable parts.”

“And Varsity cannot obtain copyright protection that would give [it] the power to prevent others from making those useful uniforms, any more than Van Gogh can copyright comfortable old shoes by painting their likeness,” Breyer said. He appended to his dissent a copy of Vincent Van Gogh’s work “Shoes.”

Besides the case’s implications for cheerleader uniforms and, more broadly, the garment industry, some education-related groups had filed friend-of-the-court briefs in support of Star Athletica.

One such brief, filed by the American Library Association and other groups, said more expansive copyright protection results in “costs and complexities” for educators, forcing them into a “permissions maze” that can make it more difficult to use content for classroom instruction.

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A version of this news article first appeared in The School Law Blog.