Cheerleading Company Dances its Way To Supreme Court

Elizabeth DiNardo, Esq. | Associate Counsel

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photo credit: Penn Live

On March 22, 2017, the Supreme Court upheld the Sixth Circuit’s ruling on a case involving copyright and cheerleading uniforms. Back in 2010, Varsity Brands Inc. (Varsity), the nation’s largest cheer uniform supplier, sued a smaller rival, Star Athletica, claiming that Star Athletica copied designs (i.e. stripes and chevron) that Varsity had previously registered with the Copyright Office. However, Star Athletica claimed that the designs were “too useful for copyright protection” and in 2014, the judge sided with Star Athletica, but on the grounds that the designs were “integrally intertwined with the function of the uniform.” At the time, it was ruled the designs were not “separable enough” to win any copyright protection.

Much to Star Athletica’s dismay, in 2015 the Sixth Court of Appeals reversed the ruling in favor of Varsity Brand Inc. Contrary to the judge’s beliefs in 2014, the Sixth Court did in fact find that the graphic design can be seen separately from the uniform itself and therefore can be protected under copyright.

Even with this ruling, the dissenting opinion pleaded that the Supreme Court review this case to provide clarity on the definition of “separability” that case law had previously made such a mess of. By a 6-2 vote, they upheld the lower court’s ruling and decidedly provided more clarity on the issue. Justice Clarence Thomas wrote the opinion and not only explained why the designs were separate, but how they were, thus creating a test for when such expression should be protected: “it must be perceived as a two-or-three dimensional work of art separate from the useful article, and it must still qualify as protectable expression when ‘imagined separately from the useful article into which it is incorporated.’”

The fallout of this decision has polarized fashion and consumer interest groups, the former wanting more protection and the latter desiring more competition. For Star Athletica, this will not be the end of their legal battle. In light of the decision, John J. Bursch, attorney for Star Athletica, has told reporters that they will return back to a trial court where the validity of the designs originality will be argued. Bursch believes that Varsity’s designs are not sufficiently original enough to be copyrighted, making all of Varsity’s claims obsolete.

This case is Star Athletica LLC v. Varsity Brands Inc., case number 15-866, in the Supreme Court of the United States.

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