Law & Courts

Justices Weigh Copyright and School Issues of Cheerleader Uniforms

By Mark Walsh — November 01, 2016 3 min read
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The U.S. Supreme Court on Monday took up a copyright battle over the design of cheerleader uniforms, in a case with implications for the costs of such uniforms for families and schools, as well as for larger copyright concerns in education.

During the oral arguments in Star Athletica LLC v. Varsity Brands Inc. (Case No. 15-866), Justice Sonia Sotomayor asked the lawyer representing the dominant company in the market for cheerleading uniforms whether, if the company won the copyright protection it is seeking in the case, schools would be “stuck with you being their only supplier of their school colors for the rest of their existence?”

No, said William M. Jay, the lawyer representing Varsity Brands.

“There are many, many, many variants available, both copyrighted and uncopyrighted, ... of cheerleading uniforms, that Varsity and its competitors can sell,” Jay said.

Varsity Brands, founded in 1974 and estimated to have annual revenues of $300 million from cheerleader uniforms, camps, and competitions, is locked in a battle with a six-year-old upstart, Star Athletica LLC, which contends that Varsity Brands copyrights hundreds of designs and photos of cheerleader uniforms, then sues competitors for similar designs that Varsity claims infringe its copyrights.

The battle stems from Varsity Brands’ efforts to gain copyright protection for the design of stripes, chevrons, zigzags, and color blocks that are on its basic uniforms, which are further customized with team names and logos. The U.S. Copyright Office in 2009 issued 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 like its own registered designs. Star contends that Varsity’s copyrights are invalid, and that its efforts inflate cheerleader uniform prices for schools and families.

The question before the Supreme Court in the case is what legal test should be used to determine whether a component of a useful article such as a garment is eligible for copyright protection. That question is of enormous importance not just for cheerleader uniforms but the entire garment industry and beyond.

“Costs and complexities of copyright licensing force educators into a permissions maze, making it difficult for them to use content for classroom instruction, like copyrighted recordings and images,” says a friend-of-the-court brief filed on Star Athletica’s side by the American Library Association and other groups.

The Oct. 31 arguments had a sometimes surreal feel to it. The lawyers discussed the “slimming effects” of cheerleader uniforms with the right design elements, as well as such topics as designer dresses, military camouflage, lunchboxes and school notebooks with designs components, and modern art.

John J. Bursch, the lawyer representing Star Athletica, told the justices that if they recognize that Varsity Brands “two-dimensional copyright [in its depictions of design elements] extends to prohibit the manufacture of actual three-dimensional cheerleader uniforms, then you’re giving them 100-years of copyright monopoly, and that school can’t go anywhere else.”

Justice Elena Kagan asked Bursch, “Can’t the school just go to somebody who puts the zigzag where the chevron was, or the chevron where the zigzag was, or makes it a couple of different colors or adds another stripe?”

“It would still be a copyright problem because they would claim that it was too close to the original,” said Bursch. “There are only certain places that these stripes and chevrons and color blocks can go, otherwise it doesn’t look like a cheerleader uniform anymore.”

It was difficult to predict from the argument which way the eight-member Supreme Court was leaning. A decision in the case is expected by next June.

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