Last week, the U.S. Supreme Court announced that it will address the issue whether apparel can be protected by copyright law—a question described by the petitioners in the case as “the single most vexing, unresolved question in all of copyright.” The justices will consider the ruling by the U.S. Court of Appeals for the Sixth Circuit in Varsity Brands, Inc. v. Star Athletica, LLC, that the stripes, chevrons, zigzags, and color blocks that appear on a cheerleading uniform are protectable under the copyright laws.

Fashion designs have traditionally had very limited protection under U.S. copyright law, which protects “original works of authorship fixed in any tangible medium of expression.” For a work to be considered original, it must be independently created by its author, and possess at least some minimal degree of creativity. Certainly, clothing designs fall within this ambit of protection. However, the reason why clothing designs have been afforded relatively little protection under copyright law is that copyright protection does not apply to items that serve a utilitarian function. For example, a white t-shirt cannot garner copyright protection because the t-shirt is a useful item with no separately artistic element. The only way for the design of a garment to acquire copyright protection is if the design “can be identified separately from, and [is] capable of existing independently of, the utilitarian aspects of the article.” What this means has been the subject of much confusion and debate.

In Varsity Brands, Inc., plaintiff Varsity, a company in the business of designing and manufacturing athletic apparel, had received several copyright registrations for much of its “two-dimensional artwork” for many of its designs for cheerleading outfits. In its complaint, Varsity alleged five claims of copyright infringement against defendant Star for selling cheerleading uniforms that were alleged to be substantially similar to Varsity’s designs. In response, at summary judgment, Star claimed that Varsity did not have a valid copyright in its designs because: (1) Varsity’s designs are for useful articles and are therefore not copyrightable; and (2) the pictorial, graphic, or sculptural elements of Varsity’s designs were not physically or conceptually separable from the uniforms, making the designs ineligible for copyright protection.

The U.S. District Court for the Western District of Tennessee granted summary judgment in favor of Star, concluding that Varsity’s designs were not copyrightable because the graphic elements of those designs were not separable from the utilitarian function of a cheerleading uniform, finding that the “colors, stripes, chevrons, and similar designs typically associated with sports in general, and cheerleading in particular,” make the garment they appear on “recognizable as a cheerleading uniform.” In other words, the district court found that the aesthetic features of a cheerleading uniform merged with the functional purpose of the cheerleading uniform.

A Test in Five Parts

On appeal, in a 2-1 decision in favor of Varsity, the Sixth Circuit overturned the district court’s ruling, finding that the designs were, in fact, protectable. In so finding, the Sixth Circuit laid out a multi-part test to determine whether the designs were protectable, asking: (1) Is the design a pictorial, graphic, or sculptural work? (i.e., is it the type of work protected by the Copyright Act?); (2) If so, then is it a design of a useful article—“an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information”? (i.e., is the design useful?); (3) What are the utilitarian aspects of the useful article?; (4) Can the viewer of the design identify pictorial, graphic or sculptural features separate from the utilitarian aspects of the article?; and, if so, (5) Can “the pictorial, graphic, or sculptural features” of the design of the useful article exist independently of the utilitarian aspects of the useful article?

The Sixth Circuit found that these first two factors were easily satisfied: the designs were two-dimensional works of art that had intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.

As to the third question—identifying the utilitarian aspects of the article—the Sixth Circuit found that cheerleading uniforms have an intrinsic utilitarian function, namely to “cover the body, wick away moisture, and withstand the rigors of athletic movements.” Star argued that the designs’ “decorative function” was one of the utilitarian aspects of the uniform; the Sixth Circuit rejected this contention, stating, “[u]nder this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs.” It went on to state that “holding that the decorative function is a utilitarian aspect of an article would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well established that fabric designs are eligible for copyright protection.” Thus, the designs were not part of the utilitarian aspects of the clothing, and were therefore potentially subject to copyright protection.

Download: Protecting Fashion through Copyrights: The Supreme Court Will Decide Whether Cheer Uniform Designs Are Protectable

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