Go, Fight, Win: SCOTUS Says Copyright Law Protects Cheerleader Costumes

In a surpise ruling that sent ripples through the fashion and design industries, the Supreme Court of the United States (SCOTUS) ruled that Copyright Law protects cheerleader uniforms deliverying a victory for creators in the case of Star Athletica v. Varsity Brands. Star Athletica clarified the scope of copyright protection for design elements incorporated into useful articles, clothing.  This means that the stuffed miniature mascots in cheerleading uniforms, monthly calendars featuring cheerleaders, clothing designed to mimic cheerleading uniforms all may be considered infringing works under the Supreme Court’s ruling.

The Case That Shook the Fashion World

In Star Athletica, the Supreme Court ruled that fashionable 2-D and 3-D aspects of clothing, traditionally considered functional, are copyrightable.  Previously, an artist had to make an election to protect creative expression: to seek a limited duration monopoly with a design patent, or a copyright with a longer duration that did not cover functionality. However, the Supreme Court has indicated that now copyright law protects cheerleader uniforms and an artist can seek both a copyright for creative aspects and a design patent for functional aspects.

SCOTUS Takes the Stand

In the 6-2 decision, SCOTUS, established a new test for determining when design features of useful articles, like clothing, can be protected by copyright. Justice Clarence Thomas, writing for the majority, outlined a two-part test:

1. The design feature can be perceived as a two- or three-dimensional work of art separate from the useful article.
2. The feature would qualify as a protectable pictorial, graphic, or sculptural work if imagined separately from the useful article.

This ruling effectively abandoned the previous distinction between “physical” and “conceptual” separability that had caused confusion in lower courts. In reaching this decision, the Supreme Court relied upon Section 101’s protections for certain aspects of design where “such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”  Under this ruling, the designs on cheerleading uniforms can be copyrighted separate from the useful article of the cheerleading uniforms themselves.

Implications Beyond Pom-Poms

While the case focused on whether copyright law protects cheerleader uniforms, its impact reaches far beyond the sidelines:

1. Fashion Industry: Designers now have clearer guidelines for protecting decorative elements of clothing and accessories.
2. Industrial Design: The decision potentially broadens protection for aesthetic elements in functional products.
3. Creative Industries: Artists and designers working in various fields may find new avenues for protecting their work.
4. Legal Clarity: The ruling provides a more uniform approach for courts to assess copyright claims involving useful articles.

Previously, the concept of usefullness in intellectual property limited protection of useful articles to patent law, since their duration is shorter than copyright protection. Patents expired more quickly and the monopolized benefit was transferred to society much earlier.  Because designs on cheerleading uniforms were viewed as functional – to identify the wearer as a member of a cheerleading squad – it has been assumed that such designs were not copyrightable, and instead be protected as a functional item as a design patent.

What This Means for Creators and Businesses

The Star Athletica decision underscores the complex interplay between functionality and artistic expression in copyright law. While the case was brought to determine that copyright law protects cheerleader uniforms, the decision likely raised serious implications for the sporting and fashion industries, as well as other utilitarian applications (e.g. industrial designs). But its effects could ultimately have the largest impact on smaller universities where their budgets are more limited. Implicit within the Court’s ruling was that all reproductions and derivative works of the cheerleading uniform designs would likely require a license. Manufacture and sales of toys, photos, clothing, etc. would require a license from the uniforms’ design copyright holder.

For businesses and creators, it highlights the importance of:

1. Identifying Protectable Elements: Carefully assessing which design features might be eligible for copyright protection.
2. Documentation: Maintaining clear records of the creative process and design choices.
3. Strategic Protection: Considering copyright registration for key design elements, even in functional products.
4. Competitive Analysis: Being aware of potential infringement issues when designing products similar to competitors’.

Take Action to Protect Your Designs

Navigating the nuances of intellectual property law, especially in light of landmark decisions like Star Athletica v. Varsity Brands, requires specialized knowledge and experience. Whether you’re a fashion designer, product developer, or business owner, understanding how to protect your creative work is crucial in today’s competitive marketplace. Contact our intellectual property team today for a consultation. We’ll help you:

• Assess the copyrightability of your designs
• Develop a comprehensive IP protection strategy
• Navigate potential infringement issues
• Stay compliant with evolving copyright law issues

Let us help you turn your creative vision into protected intellectual property. Reach out now and take the first step towards securing your designs and innovations.