C-O-P-Y-R-I-G-H-T and Cheerleading Uniforms

Copyright protects original, creative, artistic, and literary works. In order to get copyright protection, there must be a minimal degree of creativity. But if such creativity is functional in nature, it is excluded from the purview of copyright protection.

During the time I was doing litigation work at a law firm in New York City, I worked on a very interesting case involving cheerleading uniforms. The plaintiff in the case, Varsity Brands, Inc. sued the firm’s client, Star Athletica, LLC. for infringing some of their cheerleading uniforms consisting of chevrons and stripes and over which they had obtained copyright registration. Star Athletica challenged Varsity’s copyright registrations in the cheerleading uniforms on the grounds that they are essentially functional items of clothing, and the chevrons and stripes are intrinsic part of clothing which are not protected by copyright law.

The lawsuit which was filed in a federal court in Tennessee in 2010 has been since heavily litigated between the parties. Star Athletica won a favorable judgment in the federal district court which held that Varsity’s designs were functional because “the colors, stripes, chevrons, and similar designs” make the garment they appear on, recognizable as a cheerleading uniform. Varsity appealed this decision to the Sixth Circuit which reversed the district court’s decision and held that Varsity’s designs (colors, stripes and chevrons) could be separated from the functional aspects of the cheerleading uniforms. Star then appealed the Sixth Circuit’s decision to the Supreme Court, which recently heard arguments from both parties on October 31, 2016.

This is the first time that the Supreme Court has taken up a case involving fashion copyright. So what does all this mean and why am I telling you this? Textile or fabric designs are generally copyrightable because they are viewed as a work of art. But dress patterns and designs i.e. the shape, cut and style of garments, are not because the shape of an article of clothing is considered too intertwined with the utilitarian function of the garment to be copyrightable. Decorative elements of uniforms, costumes (think Halloween costumes), or other articles of clothing may or may not be copyrightable. And that is the clarity we are hoping the Supreme Court will provide.

Copyright law is a vast and complicated area of law. There is no one-size-fits-all answer to any question concerning copyrights. Furniture, lamps, bags, clothing are all generally considered functional articles. But there may be some ornamental elements present on useful articles which could be copyrightable as a work of art. For example, while the shape or form of a table lamp is not generally copyrightable, a lamp that incorporated a ceramic statuette as its base, not necessary to the function of the lamp, was found to be copyrightable. This added design element thus prevents unauthorized parties from making and selling copies of that lamp and, very likely, copies of the statue as well.

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