Cheers! Surface decorations on cheerleading uniforms may be copyrightable

Varsity Brands registered two-dimensional designs consisting of lines, chevrons and colorful shapes appearing on the surface of cheerleading uniforms with the U.S. Copyright Office.   Varsity sued Star Athletica, another uniform manufacturer, for copyright infringement.

Pictorial, graphic or sculptural features of useful articles are eligible for copyright protection if those features “can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.” 17 U.S.C. § 101.

The trial court found that Varsity’s designs were ineligible for copyright protections because they were not capable of being conceptually or physically separated from the uniform, a useful article.  The Sixth Circuit Court of Appeals reversed the ruling and held in favor of Varsity.  Star Athletica, in turn, appealed to the United States Supreme Court.

Ainsleigh Mahan + Addison Tresca of Infinity All Stars

The Supreme Court found that the pictorial and graphic qualities of the uniform designs could be applied to some other tangible medium and qualified as two-dimensional works of art.  In rejecting Star Athletica’s argument that designs were not copyrightable because the shape of the uniform would be retained even after the designs were extracted from them the Court stated:

Just as two-dimensional fine art corresponds to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article on which it is applied. A fresco painted on a wall, ceiling panel, or dome would not lose copyright protection, for example, simply because it was designed to track the dimensions of the surface on which it was painted.

The Supreme Court clarified that the only feature of the cheerleading uniform eligible for copyright protection is the two-dimensional work of art fixed in the tangible medium of the uniform fabric – the surface decorations.  There is no right to prohibit any person from manufacturing a cheerleading uniform of identical, shape cut and dimension without the surface decorations.

In sum, the artistic feature of the design of a useful article is eligible for copyright protection 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 in some other medium if imagined separately from the useful article.

See, Star Athletica, L.L.C. v. Varsity Brands, Inc. 136 S. Ct. 1823(2016)