One of the more interesting copyright cases coming up at the Supreme Court this fall involves an iconic American clothing symbol: the cheerleader’s uniform.
In Star Athletica v. Varsity Brands, the eight Justices will need to determine if certain design elements in a uniform, such as stripes, are inherent parts of the uniform or creative elements that can be protected by copyright.
The Varsity Brands Company has been a major player in the uniform business for years. It also has sought to get copyrights for the stripes, chevrons, and patterns used on its uniforms. Initially, Varsity Brands lost its argument with the federal copyright office about protection for these design elements, but it eventually won.
Star Athletica is a newer company in the clothing business and it was sued by Varsity Brands when it used similar design elements in its clothing. A lower federal court first ruled for Stat Athletica, agreeing that Varsity held copyrights on the design elements, but the elements couldn’t be distinguished from the entire uniform because it was a “useful article.”
The U.S. Court of Appeals for the Sixth Circuit then ruled for Varsity Brands in the dispute. That court pointed to the copyright office’s decision as the controlling factor, and it rejected tests devised by other courts used to tell a useful article apart from a custom pattern.
The question being considered is detailed: “Under the Copyright Act, a ‘useful article’ such as a chair, a dress, or a uniform cannot be copyrighted. The article’s component features or elements cannot be copyrighted either, unless capable of being ‘identified separately from, and . . . existing independently of, the utilitarian aspects of the article.’ Circuit courts, the Copyright Office, and academics have proposed at least nine different tests to analyze this separability. The Sixth Circuit rejected them all and created a tenth. What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?”
The Justice Department filed a brief in support of Varsity Brands and it sees a different question in front of the Court, about whether two-dimensional decorations on a garment, if significantly original, are protected by copyright laws.
Star Athletica believes that Congress intended for utilitarian garments such as cheerleaders’ uniforms to be held to a useful article, saying that Varsity doesn’t make bolts of fabric with cheerleader designs. Varsity Brands told the Court that original two-dimensional designs don’t lose their copyright protection when incorporated into a useful article.
The Court's answer to these questions could have far-reaching implications for the $300 billion fashion apparel industry. Arguments will be held at the Supreme Court on Monday, October 31.
