US Supreme Court holds cheer-leading uniforms eligible for copyright protection

Victory for team Varsity as court agrees that designs are protectable.

In the case of Star Athletica v Varsity Brands, the US Supreme Court ruled that cheerleading uniforms can be eligible for copyright protection provided they satisfy the requirements under the US Copyright Act.

Varsity Brands holds several copyright registrations which protect two-dimensional designs that the company uses on cheerleading outfits, including various lines, chevrons and shapes. However, these copyright registrations came under scrutiny, initially in the District Court.

In order to afford copyright protection under the US Copyright Act, there needs to be a “pictorial, graphic, or sculptural feature” of the “design of a useful article” in order for it to be protected as an artistic work.

Star Athletica, who are also in the market for cheerleading uniforms, were sued by Varsity Brands on the grounds of copyright infringement. Varsity Brands were initially unsuccessful in protecting their designs in the District Court on the basis that the designs could not be “conceptually or physically” separated from the uniforms, and as such they could not be eligible for copyright protection as they did not satisfy the requirements under the US Copyright Act.

The matter has since reached the Supreme Court, which held that the cheerleading uniforms themselves are eligible for copyright protection provided the required conditions can be shown and met by Varsity Brands.

These conditions encompass the following requirements:

  • the ‘feature’ must be able to be perceived either as a two or three-dimensional work of art, which is separate from the “useful” article, which in this case would be the cheerleading uniform itself
  • the ‘feature’ would qualify as a protectable pictorial, graphic or sculptural work either when on its own, or if it were in some other fixed tangible form when imagined separately from the useful article that it is incorporated into.

In the UK copyright protection arises automatically and does not need to be registered.

This case is a useful example of how copyright law in the US can be applied to products or items which, although not artistic works in themselves, have inherent artistic or design qualities which are valuable and at risk of being copied. If this case had arisen in the UK, Varsity Brands could have sought protection of their uniform designs as ‘artistic works’ under UK copyright law, or alternatively they could have tried to claim that unregistered design right (either UK or EU design right) subsisted in the uniforms and relied on this to prevent copying. Copyright and unregistered design rights arise automatically so no registration is required to be able to rely on these.

UK businesses that work with clothing designs and need to ensure these are protected are advised to keep an eye on competitors to check for any potential copying and to take legal advice on their enforcement options if copying is identified.