On Halloween, the highest court in the land heard oral argument on whether cheerleader uniform designs are subject to copyright protection. Varsity Brand, Inc. (“Varsity”), the country’s largest maker of cheerleader uniforms, sued Star Athletica, LLC (“Star”), a chief competitor, alleging Star’s uniforms use design elements that infringe Varsity’s copyrights.

The Supreme Court sought to reexamine the question previously posed and answered by the Sixth Circuit: “Are cheerleading uniforms truly cheerleading uniforms without stripes, chevrons, zigzags, and color blocks?”

The Blurry Line Between Art & Function

The test of whether a design element is art (and worthy of copyright protection) or function (and unworthy) is called “separability.” A “useful article” like a chair, dress or uniform cannot be copyrighted, and its component features or elements cannot be copyrighted unless capable of being “identified separately from, and … existing independently of, the utilitarian aspects of the article.” (17 U.S.C. § 101). For example, one couldn’t copyright the functional aspects of a bed with four legs, a mattress, a headboard, etc., but one could probably copyright the waterbed/aquarium design from the James Bond movie Diamonds are Forever.

10 Separability Tests are 9 Tests Too Many

In granting certiorari, the Supreme Court noted that “Circuit courts, the Copyright Office, and academics have proposed at least nine different tests to analyze this separability [concept]. The Sixth Circuit rejected them all and created a tenth. The first question is: What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?”

Star’s Position — It’s Not a Cheerleader Uniform Without Designs

Star, supported with amicus briefs from consumer groups and costume hobbyists, argued that stripes, chevrons and zigzags are integral parts of a cheerleading uniform that serve core functional purpose of identifying the uniform as a cheerleader uniform and making cheerleaders appear taller and slimmer. The district court agreed with Star.

Varsity’s Position — Plain Vanilla Cheerleader Uniforms are Still Cheerleader Uniforms

Varsity, supported with amicus briefs from fashion designers, argued: (A) there are many design elements available, (B) Varsity owns the stripes, chevrons, zigzags and color blocks , and (C) “you can have a white cheerleading uniform worn by a cheerleader with the team name and team logo on it.” A split Sixth Circuit panel agreed with Varsity.

Wider Implications for the 3D Printing Industry

Major 3D printing companies filed amicus briefs  asking the Supreme Court to grant certiorari and provide “a single test for determining conceptual separability under copyright law” because  “the current circuit split surrounding conceptual separability is significant and chills innovation and creativity.”

Oral Argument at the Supreme Court

Justice Ginsburg appeared to back Varsity, describing the uniforms as “a two-dimensional artwork” and agreeing that “the pictorial graphic element is not part of the design of the cheerleader’s uniform. It’s superimposed on it.”

Chief Justice Roberts appeared to disagree: “The design on a lunchbox doesn’t make the lunchbox a lunchbox. It’s still a lunchbox. But the design on a cheerleader uniform is what makes it a cheerleading uniform, as opposed to a plain dress.”

Reading the Tea Leaves

There are dozens of ways to read the tea leaves. The Supreme Court granted certiorari, which could either mean it disagreed with the Sixth Circuit’s decision or that it wanted to clean up the messy situation with 10 tests for separability.

Maybe it’s just wishful thinking, but I’m hoping the Court rules for Star. Otherwise, Varsity will hold a monopoly on the design elements, and we will see  a lot of cheerleaders dressed like tennis players from the 1950’s.