Cheerleader uniforms and copyright protection

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The US Court of Appeals for the Sixth Circuit has ruled that the fabric designs of cheerleader uniforms produced by Varsity Brands were conceptually separable from the utilitarian function of a cheerleading uniform.

Varsity Brands had sued a clothing company, Star Athletica, for copyright infringement, claiming that the cheerleader uniforms sold by Star Athletica were substantially similar to its own. The claim was refused by the District Court which held that the Varsity designs were not separable from the utilitarian function of a cheerleading uniform and because, in any event cheerleading uniforms were not eligible for copyright protection.

Varsity Brands successfully appealed, although the appeal court was divided. The majority found that the graphic features in question were more like a fabric design than a dress design and therefore did not serve a utilitarian function. The majority held that Varsity owned the copyright in the designs and remanded the case back to the district court.

The dissenting judge held that there was no conceptual separability and that Varsity’s designs were not eligible for copyright protection. He considered that the design of a cheerleading uniform was integral to its identifying function.

The dissenting judge said the law in this area would benefit from clarity from the legislator or the Supreme Court but, pending such clarification, the position is that even if the uniform has a utilitarian purpose, the fabric design on the uniform is protectable as an original fabric design as it is in the case of any other garment, assuming that it meets the low threshold level of originality required.