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Supreme Court Holds Cheerleading Uniforms Eligible for Copyright Protection

In a case involving whether the designs on cheerleading uniforms are eligible for copyright protection under the Copyright Act of 1976, the Supreme Court on March 22, 2017, held that an 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.

Justice Thomas delivered the majority opinion, which was joined by Chief Justice Roberts, Justices Alito, Sotomayor, and Kagan. Justice Ginsburg filed an opinion concurring in the Court’s judgment but not the opinion, while Justice Breyer filed a dissenting opinion, which was joined by Justice Kennedy.

Respondents, Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc. (Varsity), sued petitioner Star Athletica, LLC, for infringing their copyrights in five designs. A federal district court granted Star Athletica’s motion for summary judgment, but the United States Court of Appeals for the Sixth Circuit reversed, concluding that each of Varsity’s graphic design concepts can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the cheerleading uniform.

In affirming the Sixth Circuit’s judgment, the Supreme Court concluded that §§ 101 and 113(a) of the Copyright Act of 1976 make clear that copyright protection extends to pictorial, graphic, and sculptural works regardless of whether they were created as freestanding art or as features of useful articles. Applying the proper test for § 101’s separate identification and independent-existence requirements, the Court found that the decorations on the cheerleading uniforms are separable and therefore eligible for copyright protection. The decorations can be identified as features having pictorial, graphic, or sculptural qualities. If those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art under § 101. Imaginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uniform itself. The Court found that the designs on the surface of Varsity’s cheerleading uniforms satisfy the requirements for copyright protection.

In her concurring opinion, Justice Ginsburg concluded that consideration of the separability test was unwarranted. Instead, Justice Ginsburg found that Varsity’s designs are themselves copyrighted, pictorial, or graphic works reproduced on useful articles.

In his dissenting opinion, Justice Breyer did not agree that Varsity’s designs are eligible for copyright protection. He concluded that, even applying the majority’s test, the designs cannot be perceived as two- or three-dimensional works of art separate from the useful article. According to Judge Breyer, one cannot obtain a copyright that would give its holder any rights in the useful article that inspired it.

Lexis subscribers can access the opinion at: Star Athletica, L.L.C. v. Varsity Brands, Inc., 2017 U.S. LEXIS 2026 (U.S. 2017)

Lexis Advance subscribers can find the opinion at: Star Athletica, L.L.C. v. Varsity Brands, Inc., 2017 U.S. LEXIS 2026 (U.S. 2017)

Author:  Hans Thielman, Lexis-Nexis Case Law Editor

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