Supreme Court allows copyright protection of cheerleading uniforms

Posted March 24, 2017

The very objective of the graphic designs on a cheerleader uniform are to identify the wearer as a cheerleader and enhance their appearance, Star said.

The closely watched case centered on whether the stripes, zigzags and chevrons that typify cheerleader uniforms can be copyrighted, as Varsity contends, or are so fundamental to the objective of the garment that they should not deserve such legal protection.

The ruling could have broad implications for the fashion industry because it gives designers "another means of protecting their ornamental designs that are affixed on useful articles like clothing", said Jeanne Gills, an intellectual property lawyer with Foley & Lardner in Chicago. A federal appeals court said Varsity's lines, zigzags and braids were conceptually separate from the uniforms' functional attributes, making the designs eligible for copyright protection.

The feature is also eligible for copyright protection if it would qualify as a protectable work - either on its own or fixed in some other tangible medium of expression - if it were imagined separately from the useful article into which it is incorporated.

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Having stated the separability test, the Court found its application to the cheerleader uniform designs "straightforward": The surface decorations on the uniforms are identifiable as having "pictorial, graphic, or sculptural qualities", and the arrangements would qualify as two-dimensional works of art if separated from the uniform and applied in another medium.

In this case, Varsity argued the graphic elements of its cheerleader uniforms were separate from the function of the uniforms themselves, which can't be copyrighted.

Finally, the majority rejected three arguments raised by the petitioner.

Justice Ginsburg concurred with the majority, but would have found the designs to be copyrightable pictorial or graphics works that happened to be reproduced on useful articles - negating the need to parse the language of 17 U.S.C. § 101. A challenging aspect of the decision will be the "work of art" requirement.