Court Rules Cheerleading Uniform Designs Not Copyrightable; Sixth Circuit Has Chance to Weigh In

Author: Brian R. Westley

The Sixth Circuit has an opportunity to consider the copyrightability of clothing design elements. A federal court in Tennessee recently held that cheerleading uniforms were not copyrightable because design elements could not be conceptually or physically separated from the uniforms’ utilitarian function. Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-cv-02508 (W.D. Tenn. March 1, 2014). The court granted summary judgment for Star Athletica, which was accused of infringing Varsity Brands’ designs in a 2010 catalog. Varsity Brands has appealed the ruling.

Although the Copyright Act extends protection to “pictorial, graphic, and sculptural works,” protection does not extend to the works’ utilitarian aspects. Clothing, the court noted, has both utilitarian and aesthetic aspects. Design setting forth the shape, style and cut of clothing is not copyrightable. But a design pattern or other ornamentation imprinted on the fabric may be copyrightable if it is capable of existing independently of the utilitarian aspect of the clothing.

Here, the court determined that once the colors, patterns, stripes and other designs typically associated with cheerleading uniforms were removed, the garment ceased to function as a cheerleading uniform. All that remained was a blank silhouette. The court stated that “the utilitarian function of a cheerleading uniform is not merely to clothe the body; it is to clothe the body in a way that evokes the concept of cheerleading.” Thus, the uniforms’ aesthetic aspects had merged with its utilitarian aspects and could not exist independently.

Courts have struggled to determine when a design is separable from a work’s utilitarian aspects, and judges have applied various tests in wrestling with the issue. Although the Sixth Circuit has not yet weighed in, the Tennessee district court found a nonprecedential Second Circuit opinion instructive. In Jovani Fashion, Ltd. v. Fiesta Fashions, the Second Circuit affirmed that the arrangement of decorative sequins, crystals and other elements on a prom dress were not protectable because removing them would “adversely affect the garment’s ability to function as a prom dress, a garment specifically meant to cover the body in an attractive way for a special occasion.” 500 F. App’x 42, 44 (2d Cir. 2012).

DISCLAIMER: Although we wish to hear from you, information exchanged in this blog cannot and does not create an attorney-client relationship. Please do not post any information that you consider to be personal or confidential. If you wish for Finnegan, Henderson, Farabow, Garrett & Dunner, LLP to consider representing you, in order to establish an attorney-client relationship you must first enter a written representation agreement with Finnegan. Contact us for additional information. One of our lawyers will be happy to discuss the possibility of representation with you. Additional disclaimer information.

Tagged , ,

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: