Chevrons, Stripes, Cheerleaders, and Copyright: The Supreme Court Hears Oral Argument in Star Athletica v. Varsity Brands

| Jonathan Hyman

Edited by Catherine Holland, Lynda Zadra-Symes, and Jeff Van Hoosear

The closely watched case of Star Athletica v. Varsity Brands was argued in front of the the Supreme Court on Monday, offering anxious fashion designers a glimpse into how the Justices may rule.

As a brief recap, this case concerns whether the cheerleader uniforms designed and sold by Varsity Brands contain copyrightable works of art. Varsity Brands, one of the largest cheerleading suppliers, received U.S. copyright registrations for “two-dimensional artwork” on the five designs below and claims that Star’s cheerleading uniforms infringe these copyrights:

To qualify for copyright protection, the creative elements of a garment must be “conceptually separable” from the functional or “useful” elements. However, this “conceptually separable” test has been applied in numerous different ways depending on the court deciding the case. In the underlying 6th Circuit decision, the 6th Circuit reversed the District Court decision, and held that Varsity’s creative elements were separable, warranting copyright protection. The 6th Circuit opinion acknowledged that there is conflicting precedent, and that there are at least nine different tests used by different districts and the Copyright Office to decide the issue of “conceptual separability.” Even the dissent in the 6th Circuit decision implored either Congress or the Supreme Court to clarify the appropriate test. It is the hope of those following this case that the Supreme Court clarifies this complex and unpredictable area of law.

The Supreme Court oral argument on October 31, 2016 focused on whether the chevron and stripe design features on the cheerleader uniforms were (a) functional, resulting in no copyright protection, or (b) copyrightable artwork separable from any functional aspects of the uniforms.

Star argued that the designs are functional and not copyrightable because (i) the placement of the chevrons and stripes create the illusion that the cheerleaders wearing the uniforms are taller and slimmer, (ii) the design identifies the wearer as being a cheerleader, and (iii) the design functions to define the shape of the uniform, cover the seams, and strengthen the waistband. While Star conceded that the designs could be protected if applied to other objects, such as lunch boxes, it argued that when applied to cheerleading outfits the designs should have no such protection as the design is “inseparable” from the underlying dress.

While the parties agreed that the cut and shape of the cheerleader uniforms are not copyrightable, Varsity argued that the designs applied to the uniforms clearly contain copyrightable elements. Initially, Varsity argued that the designs are not functional (thus eligible for copyright protection) because stripes and chevrons are not essential to identifying a cheerleader. Advocates for Varsity also argued that even if the uniforms convey that the wearer is a cheerleader, this is precisely the kind of expressive function that copyright traditionally protects. In other words, copyright traditionally protects art that indicates a person is a member of a particular group or holds a particular set of beliefs, such as that portrayed by a sports team logo. Moreover, Varsity argued that the Copyright Act should be interpreted to mean that all copyrightable two-dimensional designs that are applied to useful articles remain copyrightable, regardless of the useful article to which they are applied.

As usual, the Supreme Court Justices had several questions and comments. However, most did not focus on articulating the proper test for separability. The Justices appeared more concerned with how the outcome will affect the fashion industry. Notably, Justice Sotomayor made the point that if the uniform designs are copyrightable, the schools purchasing them would be stuck with one supplier for the length of the copyright (potentially over 90 years). Justice Sotomayor also noted that if these designs are found copyrightable, it would effectively eradicate the knock-off industry. Justice Breyer voiced the concern that allowing these designs to be copyrightable may double the price of all clothing designs in an already thriving industry. Justice Breyer was even concerned that “any good designer or lawyer could go and take any dress or suit, just about, and produce a picture that looks very much like that and then sue the companies that use the same dress or style.”

While the oral argument did not shed much light on how the Justices may rule, it is the first time this issue has been heard by the Supreme Court. The Supreme Court will, hopefully, clarify and introduce some much needed “uniformity” to this area of law, or push Congress to act. The Justices are expected to issue an opinion sometime in the spring of 2017.