High Court Shakes Its Pom-Poms for Uniform Makers

Posted March 24, 2017

(Case No. 15-866), the court ruled 6-2 that Varsity Brands' uniform designs at issue may be copyrighted. Justice Stephen Breyer, joined by Justice Anthony Kennedy, dissented, arguing that even under the majority's test, the designs can not be perceived as separate from the cheerleading uniform. 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 Supreme Court held that a feature incorporated into the design of a useful article is eligible for copyright protection if the feature can be perceived as a two- or three-dimensional work of art separate from the useful article.

Justices Stephen Breyer and Anthony Kennedy agreed with Thomas's analysis of the law, but not the result.

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Applying this test to the surface decorations on the cheerleading uniforms is straightforward. Congress has declined to provide broad copyright protection to the fashion industry, though textile designs are eligible, he said.

The decision comes almost 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. "But with that cut and arrangement, the resulting pictures on which Varsity seeks protection do not simply depict designs". The Court, however, expressly disclaimed any conclusion regarding whether the decorations were sufficiently original to qualify for copyright protection and further clarified that even if the decorations were copyrighted, the owner could not use such copyright to prohibit manufacture of any "cheerleading uniform of identical shape, cut, and dimensions". Justice Clarence Thomas, writing for the majority, opined that "the uniform design met the [separability] test of being able to exist as its own pictorial, graphic, or sculptural work". The Court re-emphasized, however, that a design feature itself can not constitute a useful article and still obtain copyright protection.