Give me a © for Copyrightable! The Supreme Court Holds That Cheerleading Uniforms can be Copyrightable

Last week, the U.S. Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866 (U.S. Mar. 22, 2017), handed Varsity Brands, Inc. a victory, ruling that designs on cheerleading uniforms are eligible for copyright protection.

In a 6-2 decision, the Court held that “a feature incorporated into the design of a useful article is eligible for copyright protection only 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 fixed in some tangible medium of expression — if it were imagined separately from the useful article into which it is incorporated.” This new two-tier separability test resolves a split among circuit courts and sets forth one test to govern nationwide.

The new two-part test requires “separate identification” of the work in question, meaning that an ordinary observer must be able to “look at the useful article and spot some two-or-three-dimensional element that appears to have pictorial, graphic, or sculptural qualities.” Under the second part of this new test, it must be determined that the work’s feature can “exist as its own pictorial, graphic, or sculptural work” and is not a functional, or utilitarian, aspect of the useful article.

It is important to note that, despite many headlines, the Court did not extend copyright protection to cheerleading uniforms or clothing broadly. Regardless of how chic or fashionable an item of clothing is, fashion is not protectable under copyright law, since clothing is regarded as utilitarian and functional. However, individual components of clothing that are separable from underlying garments have always been eligible for protectable by copyright. For instance, a design printed on a t-shirt or woven into a poncho have always been separately protectable by copyright. The Court’s decision brought uniformity to how courts should approach the issue of separability.

Now that the Court has provided clarity on the separability test, the case will be remanded to the district court to determine whether the particular design elements in dispute are eligible for protection, either alone or in combination.

In order to protect the design of a useful article of manufacture through copyright, brands should remember to document their creation process and file copyright applications to protect original works of authorship.