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Designs on Cheerleader Uniforms Can Be Copyrighted
When is a graphic design a “work of authorship” that, when incorporated into the design of a useful article, is “identified separately from, and ' capable of existing independently of, the utilitarian aspects of the article”? That issue is at the heart of the Court of Appeals for the Sixth Circuit's decision in Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237, ___ F.3d ___ (6th Cir. 2015). In deciding that the designs on cheerleader uniforms were more like copyrightable fabric designs than unprotectable garment designs, the Sixth Circuit undertook a lengthy analysis of “separability”; that is, when certain features of useful articles are capable of being copyrighted separately from the articles' functional aspects.
Case Background
Varsity Brands, Inc. and related companies registered as two-dimensional artwork a number of graphic designs for their cheerleading uniforms and other athletic apparel. Varsity's designers make sketches of design concepts that include original combinations, positioning, and arrangements of elements, including chevrons, lines, curves, stripes, angles, diagonals, inverted V's, coloring and other designs. The designers do not consider the functionality of the uniform or whether it will be easy to produce a full-sized uniform that resembles the sketch. Varsity decides whether to use the design on a uniform. Varsity's customers purchase the uniforms by choosing from many designs Varsity offers in catalogs and online, and then they choose the shape, colors, and braiding for the uniform.
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