Save the Cheerleader, Save the Copyright: Will SCOTUS Give the Fashion Industry Cause to Cheer? – February 2017


In a relatively lack-luster SCOTUS season, with the Court down one squad member from their usual nine-person roster, a copyright dispute involving cheerleader uniforms brought some pep to last year’s final term.

Copyright law cheers on “original works of authorship fixed in any tangible medium of expression” – including literary; musical; dramatic; choreographed or pantomimed; “pictorial, graphic, and sculptural;” and architectural works; movies and other audio-visual works; and sound recordings –  protecting them from others’ making copies without permission. 17 U.S.C. § 102. Under the U.S. Copyright Act, a “useful article” such as a desk, a lamp, or a uniform may be eligible for copyright protection, but only for those elements of the article that “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. If the usefulness of an article is not conceptually separable from its aesthetic features, the article is generally not copyrightable, no matter how nice its spirit fingers.

For clothing, the overall design of a garment is generally not protected by copyright, but decorative features, like a pattern woven into the fabric, might be protectable as “graphic” works under the Act. Thus, fabric designs, not the design of the wearable garment itself, may be copyright eligible – an analysis that is often very fact-specific.

Beyond the statutory language, however, few cases provide concrete guidance, or at least spirited encouragement from the sidelines, in the frequently tricky determination.

Famed litigious grump and erstwhile director George Lucas found a sculptor’s lack of licensing disturbing and broached the issue of conceptual separability and clothing in Lucasfilm, Ltd. v. Ainsworth [2011] UKSC 39, claiming that British model-maker Andrew Ainsworth was copying and selling designs for Imperial Stormtrooper helmets, the copyright to which Lucas owned but the original molds of which had remained in Ainsworth’s hands since the sculptor created them in the 70s. Though Lucas won 20 million galactic credits on summary judgment when Ainsworth didn’t cross the pond to show up in court in the U.S., the Force was not with Lucas on his own trip over the Atlantic to collect in the English court system. Be-wigged Judges Collins and (Sky)Walker wrote for the unanimous court, who found the helmets’ use as headgear inseparable from any aesthetic qualities and, thus, deemed their design ineligible for copyright. But the question remained unanswered in the far, far away land of the free and home of the wigless attorney.


This isn’t the case you’re looking for.

Another 2011 dispute reinforced the idea that it was not morphin’ time for clearer distinctions to be sewn into the seams of the law. The company that owns copyrights to the Power Rangers, the aptly named SCG Power Rangers LLC, sued online costume merchant Underdog Endeavors over unauthorized bodysuits and helmets that bore the signature color schemes and dinosaur insignias of the Rangers’ get-ups. SCG claimed a copyright on the “artwork and design” of Power Ranger suits, conceptually separable from the use of the garb, to which Underdog crumbled like so many Putty Patrollers at the hands of super-powered high schoolers, and the matter settled quickly in lieu of a court battle.

And, more recently, the Supreme Court decided that the Batmobile would not be the sweet, sweet vehicle it would use to answer this question of conceptual separability when it denied cert. on an appeal of a 2015 Ninth Circuit decision, which held that the use of an infringing Batmobile replica as a functional, 3-D car did not prevent DC Comics from exercising its copyright over the Batmobile as a fictional, 2-D character and, thus, precluding others from producing unlicensed reproductions. In other words, the Ninth Circuit determined that the car’s utilitarian features were separable from its aesthetic features, making it copyrightable by DC. But still SCOTUS, like the Dark Knight, stuck to the shadows.

In a case for which the Supreme Court heard oral arguments this past Halloween, however, Star Athletica, LLC v. Varsity Brands, Inc., — (2016), the Court aims to stitch a brighter line into the analysis of conceptual separability, specifically for articles of clothing. Fortunately, captain of W&L Law’s varsity IP squad, Prof. Sarah Wiant, gave a presentation on the case at the Celebrity Torts Preview and was able to help me better understand the pattern of the case.

Clothing manufacturer Varsity Brands holds U.S. copyrights on several cheerleading uniform designs – consisting of zigzags, colorblocks, stripes, and chevrons – as two-dimensional art. And Star Athletica, a competitor, sold its own uniforms with a striking resemblance to Varsity’s, which Varsity felt violated its copyright in the patterns.


Feeling probably not unlike the Clovers after discovering the Toros stole their moves.

Both sides agreed that such two-dimensional graphic designs can be protected by copyright but differed as to whether the same protections extend to three-dimensional garb bearing those designs. Counsel for Star Athletica argued that the placement of a copyrighted 2-D design on a 3-D article does not automatically then infuse the 3-D article with copyrightability; however, in the case of stripes* and other patterns, which can have, for example, a slimming effect, the utility of the article is intermingled with the aesthetic of the design, resulting in no conceptual separability and, thus, no copyright coverage for the 3-D article.


*Vertical stripes

In Star Athletica’s view, therefore, Varsity’s uniforms, bedazzled in shapes and angles and the like, did not qualify for copyright protection merely because of the 2-D designs on the uniforms. As Prof. Wiant explained it, “While two-dimensional graphics of an article of clothing can be copyrighted, the minute you turn it into a three-dimensional object, it becomes a utilitarian object.” And utilitarian objects enjoy no copyright protection.

The fabric of Varsity’s argument, of course, follows the opposite seam. As Prof. Wiant explained their stance, “Chevrons and color blocks are really more aesthetic, so maybe they aren’t functional.” And the Justice Department even threw their (potentially copyrightable) hats into the ring, filing an amicus brief asking for a clearer test of separability, especially in the realm of camouflage-patterned clothing.

While the appeals court in this case, the Sixth Circuit, earlier ruled that stripes, chevrons and color blocks were eligible for copyright, the scorecards of the SCOTUS justices remain to be seen. Prof. Wiant couldn’t offer a prediction about the outcome, but she did say with the clarity of a megaphone that she hoped the Court would not expand copyright protection to cover 3-D garments: “I think the statutes and regulations in place to, as the Constitution says, ‘promote the progress of science and the useful arts’ work just fine, thank you very much.”

As reluctant as the Court has seemed to take the “big cases” recently, their holding in Varsity Brands could shake the world of copyright law, and potentially the economy, more vigorously than a pompom. In addition to affecting uniform and costume makers, this decision could have a wide impact on the approximately $300 billion-with-a-b fashion industry, which has had no similar copyright protections or restrictions in the past.  While the industry “would love it” if the Court extended copyright eligibility to clothes, Prof. Wiant contended, such a move would “kill the knock-off industry. The cost to the consumer would be astronomical.” And so, until SCOTUS hands down a judgment, here’s hoping it can knit together a more definitive test that ultimately gives us consumers a reason to cheer.