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SCOTUS Rules: When Are Cheerleader Uniform Designs Protected by Copyright?

By George Khoury, Esq. on March 23, 2017 | Last updated on March 21, 2019

The zigs and the zags, the pleats, and the stripes have all been cleared for copyright protection when it comes to cheerleading uniforms. The Supreme Court ruled Wednesday in Star Athletica v. Varsity Brands that the separable features of a cheerleading uniform could confer copyright protection to the specific design of a cheerleader uniform. However, significantly, the court ruled that the features only need to satisfy a deceptively simple two part test.

Under intellectual property law, cheerleading uniforms are considered utilitarian or useful objects, which are generally not legally protectable, meaning that the idea of a cheerleading uniform, like the idea of pants, or a shirt, is not protectable. However, the Court ruled that the design elements, such as graphics, stripes, or other design elements, may confer copyright protection to a cheerleading uniform, such that another maker cannot copy the design.

More Details on the Case

While the decision reached by the Court was about cheerleading uniforms, the implications are much more far reaching, particularly for clothing makers and other manufacturers. The Court, by taking up this case, has provided much needed guidance on this issue. Until this point, there were as many as 10 different tests that courts used when deciding when a useful object's design could be copyrighted. As explained, courts can simply apply the two part test:

a "pictorial, graphic, or sculptural featur[e]" incorporated into the "design of a useful article" is eligible for copyright protection if it (1) "can be identified separately from," and (2) is "capable of existing independently of, the utilitarian aspects of the article."

As the court further explained, only the designs are protectable:

The only feature of respondents' cheerleader uniform eligible for a copyright is the two-dimensional applied art on the surface of the uniforms. Respondents may prohibit the reproduction only of the surface designs on a uniform or in any other medium of expression. Respondents have no right to prevent anyone from manufacturing a cheerleading uniform that is identical in shape, cut, or dimensions to the uniforms at issue here.

What Does This Decision Mean?

For businesses, this decision will make it easier for manufacturers to assert copyright violations against other manufacturers when protectable design elements on utilitarian objects are copied. For individuals, this decision may make it more difficult for unlicensed, or unofficial, fan gear to get away with copying popular design elements.

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