not one of the uniforms
at the centre of the case
In Star Athletica v Varsity Brands the US Supreme Court has just ruled that cheerleading uniforms are eligible for copyright protection ['copyrightable', to use the US copyright jargon].
The US Copyright Act, §101 states that “pictorial, graphic, or sculptural features” of the “design of a useful article” can be protected by copyright as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
Varsity Brands holds more than 200 copyright registrations for two-dimensional designs - consisting of various lines, chevrons, and colourful shapes - appearing on the surface of the cheerleading uniforms that they design, make, and sell.
It sued Star Athletica (also in the market for cheerleading uniforms) for copyright infringement, but the District Court held that Varsity Brands' designs could not be conceptually or physically separated from the uniforms and were therefore ineligible for copyright protection.
In reversing, the Sixth Circuit concluded that the graphics could be “identified separately” and were “capable of existing independently” of the uniforms under §101.
In today's decision the US Supreme Court decided - 6 to 2 (Justice Breyer filing a dissenting opinion, in which Justice Kennedy joined) - that cheerleading uniforms are indeed eligible for copyright protection if certain conditions are met.
Writing for the majority, Justice Thomas held that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature: (1) can be perceived as a two- or three-dimensional work of art separate from the useful article; and (2) would qualify as a protectable pictorial, graphic, or sculptural 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.
A detailed analysis of the decision will be provided in due course: stay tuned!