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Blog

Hip Hip Hooray! Supreme Court Upholds Copyright Protection for Cheerleader Uniforms

March 23, 2017

Blog

Hip Hip Hooray! Supreme Court Upholds Copyright Protection for Cheerleader Uniforms

March 23, 2017

Back to Fish's Trademark and Copyright Blog

 

On March 22, 2017, the Supreme Court, in a 6-2 opinion by Justice Thomas, affirmed the Sixth Circuit’s holding that the two-dimensional graphic designs on Varsity Brands’ cheerleading uniforms are eligible for copyright protection. Justice Ginsburg filed an opinion concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Kennedy joined.

The Court reached its decision by analyzing the two prongs of separability under 17 U.S.C. § 101, which provides that “pictorial, graphic, or sculptural features” of the “design of a useful article” are eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. The Court’s holding confirmed that a design of a useful article is eligible for copyright protection if it can be perceived as a work of art separate from the useful article, and would qualify as a protectable work if it were imagined separately from the useful article into which it is incorporated. The Court indicated that its test did not render the shape, cut, and physical dimensions of the cheerleading uniforms eligible for copyright protection.

The Court rejected Star Athletica’s argument that the designs were functional. It also rejected the argument that for a feature to be “separable,” the useful article must remain equally useful absent the feature, since separability is not concerned with the state of the useful article post-separation. The Court also rejected Star Athletica’s argument that protecting surface decorations is inconsistent with Congress’ intent behind declining to enact general industrial design protections, while maintaining design patents. The opinion firmly stated that Congressional inaction is not a reliable indicator of intent, and the Court has long held that design patents and copyrights are not mutually exclusive.

In the dissent, Justice Breyer viewed Varsity Brands’ designs as insufficiently separable from the uniforms and unable to exist independently from the uniform.

The ruling is a win for fashion designers hoping to enforce copyrights on design elements of garments, handbags, and other accessories.

The Opinion can be read here. Fish’s prior blog post about the case can be read here: http://www.fr.com/fishTMCopyrightblog/three-cheers-for-copyright/

Blog Authors

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Irina Lyapis | Associate

Irina Lyapis is an Associate in the Silicon Valley office and a member of the firm’s Trademark and Copyright practice. Her practice focuses on strategic management of global trademark portfolios including clearance, prosecution, counseling, disputes, and enforcement. She represents...

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Kristen McCallion | Principal

Kristen McCallion is a Principal in the New York office of Fish & Richardson and Chair of the firm’s Copyright Group. Ms. McCallion represents businesses in the consumer products, Internet, media, and interactive entertainment industries in copyright, trademark, trade...

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