Copyright law in the US has a long history, dating back before the founding of the republic. Article 1, Section 8, Clause 8 of the US Constitution reads, in part:
The Congress shall have Power To…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…
And so we arrive at the question: Can Cheerleading Uniforms be Protected by Copyright?
OK, I skipped a few steps there.
A recent federal court case, Varsity Brands, Inc. v. Star Athletica, LLC, before the 6th Circuit Court of Appeals, addressed whether cheerleader uniform designs could be protected by copyright. The issue at hand was whether the uniform designs are “useful articles.” That matters because “design[s] of . . . useful article[s]” cannot be protected by copyright, according to 17 U.S.C. § 101.
Fight On!
No, not my alma mater, the University of Southern California. I’m referring to the United States Code, of course.
In this case, the lower (District) court held that the designs were not protectable by copyright because they were, in fact, useful articles.
The 6th Circuit’s Moment of Zen
Why? Because, according to that court, “a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and colorblocks.” This is turning into one of those Zen riddles. When is a cheerleading uniform not a cheerleading uniform?
The case was appealed to the 6th Circuit Court of Appeals.
Determining that the designs on the uniforms in question could not be physically separated from the underlying clothing (such as it is), the appeals court then had to consider whether the designs were conceptually separable from the utilitarian aspects of the uniforms. They discussed 9 different tests of conceptual separability, including such greatest hits as The Primary-Subsidiary Approach, The Likelihood-of-Marketability Approach, and, of course, Patry’s Approach. They finished strong with the The Subjective-Objective Approach. Everyone loves that one.
Not being able to choose just one of those tests, the 6th Circuit opted to adopt a hybrid test that…OK, we’re losing the plot here, so let’s skip ahead to the good stuff.
The court ruled that…
Because we conclude that the graphic features of Varsity’s designs “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of [cheerleading uniforms],” we hold that Varsity’s graphic designs are copyrightable subject matter.
The basic idea here is that the designs could exist just as well in some other medium (like an artist’s rendering, such as the one that appears at the top of this post). Therefore, there was no reason not to grant the designs copyright protection.
Does This Apply to All Kinds of Clothing?
Nope.
The Copyright Act protects fabric designs, but not dress designs.
Why? Because, according to the court…
…it is impossible either physically or conceptually to separate a “dress design,” which “graphically sets forth the shape, style, cut, and dimensions for converting fabric into a finished dress or other clothing garment,” from the utilitarian aspects of clothing, i.e., to cover, protect, and warm the body.
Whether we should change copyright law to protect apparel designs has been a hot topic in recent years. But for now, the 6th Circuit played it safe and only granted protection to the graphical elements of cheerleading uniforms.
Yay! Go Varsity!
