On Wednesday the U.S. Supreme Court ruled that basic elements in cheerleader uniform designs can be protected by copyright. The decision - affirmed, 6-2, in an opinion by Justice Clarence Thomas - regarded a dispute between Varsity Brands Inc, the dominant cheerleader uniform maker, accusing Star Athletica LLC of infringing on five of its designs (Star Athletica v. Varsity Brands, No. 15-866; argued October 31, 2016 - decided March 22, 2017 - Download 15-866).
As most cheerleader uniforms look quite similar, a U.S. District Court for the Western District of Tennessee sided with Star Athletica in March 2014, stating that Varsity's uniforms were not protectable, as the design elements could not be conceptually or physically separated from the uniforms. In August 2015, a split Sixth Circuit Court of Appeals reversed the lower court's ruling. Varsity's court documents argued that cheerleader uniforms can indeed be plain and that their decorative elements are graphic designs separate from the uniforms.
The high court put forth a two-part test to establish if design elements such as the lines, stripes, zigzags and chevrons that typify cheerleader uniforms - warranted copyright protection. According to Justice Thomas, while the uniforms can not be copyrighted, their elements can be protected.
Such creative elements become eligible for copyright protection (in accordance with § 101 of Copyright Act of 1976) when they can be perceived as a two- or three-dimensional work of art separate from the useful article, and when they qualify as protectable "pictorial, graphic or sculptural work", separately and independently from the useful article in which they are incorporated.
The court ruled that the two-dimensional work of art in the uniform met both the requirements of the statute. But this may not be the end of the case as the trial court will have to determine whether Varsity's lines, chevrons, and shapes are original enough to merit copyright protection.
There was another rather unique ruling regarding cheerleaders uniforms and a porn film that may sound relevant, even though in this case no stripes or chevron motifs were involved, but colours and stars and therefore trademarks.
In the Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd (1979) case, the Appellee (Dallas Cowboys Cheerleaders) brought an action against the Appellant (Pussycat Cinema) to enjoin the company from promoting their film "Debbie Does Dallas".
Wishing to join the Dallas Cowboy Cheerleaders, the main character in the film engages in a variety of sexual acts to raise money and travel to Dallas. The Appellee stated there had been a Lanham Act trademark violation (the federal statute governing trademark infringement) as the Appellant had volated the distinctive Dallas Cowboy Cheerleaders' uniform.
The main character in "Debbie Does Dallas" donned indeed a very similar uniform to that of the Dallas Cowboy Cheerleaders', comprising white boots, white shorts, blue blouse, and white star-studded vest and belt - elements that constituted a trademark and that may have generated confusion in the public. While the defendants argued that the uniform was purely functional, and thus common for use in cheerleading routines, the court disagreed, stating that if an item "serves or performs a function" it does not mean that it may not at the same time be capable of indicating sponsorship or origin, "particularly where the decorative aspects of the item are nonfunctional".
The United States District Court for the Southern District of New York held therefore that the Appellant violated the Dallas Cowboy Cheerleaders' trademark and that the injunction was proper.
Whle the "Debbie" case was mainly linked with trademarks, in the Star/Varsity dispute we are dealing with copyrights. Varsity's direct competitors tend to side with Star, claiming that Varsity wants protection for items that are ubiquitous and too generic to merit copyrights. Indeed, Varsity did not seek a design patent for its designs or copyright on a textile design, but claimed ownership of the treatment and arrangement of the chevrons and lines of the design as they appear at the neckline, waist, skirt, sleeves, and overall cut of each uniform. According to the law, the style or cut of a garment is not eligible for copyright, but a pattern on it can be protected; therefore you can't protect the copyright of a useful article like a shovel, but you can protect the graphic works incorporated in a "useful article".
At the moment clothing companies mainly use other methods like trademark to protect their products, but in future there may be more copyright protection for clothing designs as well. It will be therefore interesting to see if the decisions taken by the Supreme Court in the Star/Varsity case will have an impact in the fashion world: the Council of Fashion Designers of America stated that ruling in favour of Star would have deteriorated the protection available to fashion designers. But while the current ruling offers them a ground to defend themselves against fast fashion retailers and copysts, contemporary designers may have problems in borrowing patterns and motifs from other times/other designers, so things remain a bit confusing.
For the time being, though, at least when it comes to trademark-related issues, it looks like the garment industry (and the cheerleading uniform designers and manufacturers ...) may find unlikely help in a ruling linked with the porn movie industry.
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