On March 22, 2017, the Supreme Court of the United States decided Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866, holding that artistic designs on cheerleading uniforms were eligible for copyright protection.
Section 101 of the Copyright Act grants limited copyright protection to artistic elements of so-called “useful articles” by providing that the artistic designs of a useful article are eligible for copyright protection if they “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
Invoking Section 101, Varsity Brands, Inc. copyrighted various designs on its cheerleading uniforms composed of combinations of chevrons, lines, curves, stripes, angles, and other colors and shapes. It then sued Star Athletica, L.L.C., a competing manufacturer of cheerleading uniforms, claiming that Star Athletica’s designs infringed on Varsity’s copyrights. The district court granted summary judgment for Star Athletica, reasoning that the designs on the uniforms could not be “separated” from the utilitarian function of the uniform, and thus did not qualify for the limited protection afforded by Section 101. The United States Court of Appeals for the Sixth Circuit reversed, holding that graphic designs were “separately identifiable” because the designs could be put side by side with a blank cheerleading uniform and were also “capable of existing independently,” because they could be incorporated into the surface of different types of garments or hung on the wall and framed as art.
The Supreme Court affirmed, holding 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. This test was the most sensible interpretation of the text of Section 101, and was consistent with the history of the Copyright Act and the Court’s prior decisions.
Applying that test to the decorations on the cheerleading uniforms, the Court held that they were copyrightable, because one could “identify the decorations as features having pictorial, graphic, or sculptural qualities,” and because the arrangement of colors, shapes, and chevrons on the surface of the uniforms could be separated from the uniform and applied in another medium. But the Court emphasized that “the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric” and that “respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.”
Justice Thomas delivered the opinion for the Court, in which Chief Justice Roberts and Justices Alito, Sotomayor, and Kagan joined. Justice Ginsburg filed an opinion concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Kennedy joined.