Give me a “C-O-P-Y-R-I-G-H-T-A-B-L-E” for Cheerleader Uniform Designs

Give me a “C-O-P-Y-R-I-G-H-T-A-B-L-E” spells Copyrightable Protection for Cheerleader Uniform Designs

“Six” cheers for copyright protection for cheerleader uniforms.  In a 6-2 decision, the U.S. Supreme Court in Star Athletica, L.L.C. v. VarsityBrands, Inc. proclaimed Varsity Brands’ cheerleader uniforms are entitled to copyright protection.  Varsity Brand’s victory over Star Athletica re-confirms copyright protection as a viable option for protecting the design of useful articles of manufacture.  Time will tell if U.S. copyrights will upset U.S. design patents as the champion of protection of designs of useful articles.

The subject at the heart of this epic copyright contest are cheerleader uniforms such as the ones reproduced in this article.

Many are aware that U.S. copyright protection is afforded to artistic works of authorship fixed in a tangible medium of expression such as works of fine, graphic, and applied art, photographs, prints and art.  What might surprise some is that the U.S. copyright law extends limited copyright protection for pictorial, graphic, or sculptural works incorporated into a “useful article” if the artistic features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U. S. C. §101.   In particular, the U.S. Copyright Act establishes a special rule for copyrighting a pictorial, graphic, or sculptural work incorporated into a “useful article,” which is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 

A design incorporated into a useful article qualifies for copyright protection only if the design features:

(1) can be perceived as a two- or three-dimensional work of art separate from the useful article and
(2) the design would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression— if it were imagined separately from the useful article into which it is incorporated.

In this case, the Supreme Court held that the designs of the cheerleader uniforms (useful articles) are entitled to copyright protection since the designs (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) the designs qualify as protectable pictorial or graphic when imagined separately from the useful articles (cheerleader uniforms).  The Court determined that the arrangements of lines, chevrons, and colorful shapes appearing on the surface of the cheerleading uniforms are eligible for copyright protection as separable features of the design of those cheerleading uniforms.

The significance of this decision is the strengthening of intellectual property protection for artistic designs of useful articles.  Where, in the past, one may have relied solely on U.S. design patents to protect the intellectual property of the look or appearance of a useful article of manufacture, U.S. copyright protection may also be available to protect the intellectual property of the design of a useful article of manufacture.

© Stephen J. Weyer 2017

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