The US Supreme Court ruled today (March 22) that basic decorative elements in cheerleader uniform designs are protected by copyright law.
The decision comes nearly seven years after Varsity Brands, the leading American maker of the garments, first sued Star Athletica, a smaller rival, for infringing on five Varsity cheerleading uniform designs. The case hung on the question of whether certain arrangements of lines, chevrons, and colorful shapes on the front of these uniforms could be copyrighted.
Star Athletica argued that features such as the stripes and chevron patterns are not just two-dimensional designs but are part of the three-dimensional function of the cheerleading uniforms, at times, for example, concealing stitching. In a 51-page majority opinion, justice Clarence Thomas wrote that since the uniforms—similar to a t-shirt, paper towels, car, or other useful real-world items —serve a function, they cannot be copyrighted. But, Thomas went on, since the Varsity Brand designs can be conceptually separated from the uniforms themselves—in other words, you can imagine the design separate from the physical uniforms—those designs qualify as two-dimensional works of art. And that can be copyrighted. Thomas wrote:
In sum, a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.
Applying this test to the surface decorations on the cheerleading uniforms is straightforward. First, one can identify the decorations as features having pictorial, graphic, or sculptural qualities. Second, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium—for example, on a painter’s canvas—they would qualify as “two dimensional…works…of art.”
And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents [Varsity Brands] have applied the designs in this case to other media of expression—different types of clothing—without replicating the uniform. The decorations are therefore separable from the uniforms and eligible for copyright protection.
A number of fashion brands, designers, and industry groups—including the Fashion Law Institute, Narciso Rodriguez, Proenza Schouler, and the Council of Fashion Designers of America—filed amicus briefs in support of Varsity Brands, and to represent the fashion industry’s concern that a ruling in favor of Star Athletica would be a threat to designers’ ability to protect their designs.
Susan Scafidi, a professor at Fordham University and founder of the Fashion Law Institute, provided expert advice in the trial when the case was still at the District Court level and says this should not have been an “enormous, Supreme Court-worthy case garnering international attention.”
The Supreme Court ruling won’t change anything for designers, she says, but does preserve the little protection they have come to rely on for their designs. “The fashion industry barely has protection over fabric prints, lace patterns, jewelry, belt buckles, or handbag clasps,” says Scafidi. That’s because designers cannot copyright the cut or shape of three-dimensional garments in the US. “Copying is rampant and protection is limited,” says Scafidi, “so the industry needs to hold onto the little protection it does have to prevent design piracy.”
In a statement Varsity Brands published following the Supreme Court decision, founder Jeff Webb said: “Today’s favorable ruling represents the culmination of years of hard work to protect our original design, and we are of course gratified by the outcome and what it means for our business. But more fundamentally, we were honored to serve as advocates and fighters for the basic idea that designers everywhere can create excellent work and make investments in their future without fear of having it stolen or copied.”