Hip Hip Hooray!!! Supreme Court Says Cheerleader Uniforms are Protectable under Copyright Law

In what can only be considered good news for fashion designers, the Supreme Court, by a 6-2 vote, held last week that the decorative elements of a cheerleading uniform are protectable under Copyright Law.  The decision marks a change of direction that has been advocated by fashion companies and designers for years.  The case involved Varsity Brands Inc., the largest cheerleading apparel supplier in the United States, and its competitor, Star Athletica, who Varsity Brands accused of copying its uniform design.  Specifically, Star Athletica was selling a copy of Varsity Brands’ cheerleading uniforms with similar stripes, chevrons, zigzags, and color blocks in the outfits.  Previously, the 6th Circuit Court of appeals found the elements to be more than just aesthetic touches, but, in fact, are what made the outfit a cheerleading uniform.


Varsity Brands Design

Star Athletica


Proponents of copyright protection for fashion argue that apparel has developed from its original merely useful purpose (covering up a naked body) to more complex articles, including separable concepts. According to fashion designers, these separable concepts are capable of producing protectable expressions of ideas, which is precisely the realm of copyrights protection. As a result of the decision, the Supreme Court chose to side with fashion designers. Justice Thomas explained that the appropriate test for determining whether an article of clothing can be protected via copyright is whether the decorative elements could be separated from the usefulness of the article of clothing.  To be clear, only these separable elements, e.g., stripes, chevrons, zigzags, etc., can be protected.  Therefore, while Varsity’s designs now enjoy some protection under copyright law, the protection is limited.  For example, Varsity cannot prevent a third party from manufacturing a cheerleading uniform of similar size and shape (without the decorations).  But, Varsity can prevent a third party from reproducing its decorative elements, such as its unique arrangement of graphics, stripes, colors, etc. The Council of Fashion Designers of America, a very vocal group on the issue, had advised the Court about the danger of ruling against Varsity.  According to the Council, ruling for Athletica would leave designers incapable of defending their businesses against infringers making copies of unique designs.

Since the Court ruled in favor of Varsity, however, fashion designers now have a route for the protection of some of their design elements. The holding did not come without its critics, however, who argued that useful items, such as clothing, should only be protectable under patent law, due to the limitations on terms of protection and strict requirements for eligibility of protection. There is still a long way to go before this issue of copyright protection for apparel is completely clear; however, at least for now, fashion designers appear to have at least some limited remedies under copyright law. To learn more, contact the attorneys at The Concept Law Group:  www.conceptlaw.com To read the full decision, go to: https://www.supremecourt.gov/opinions/16pdf/15-866_0971.pdf