US Supreme Court takes on cheerleader copyright case
The US Supreme Court has agreed to hear a dispute centring on whether cheerleader uniforms can be protected by copyright.
In a decision handed down yesterday, May 2, the court agreed to hear a dispute between Varsity Brands and Star Athletica.
Star Athletica will hope that the Supreme Court will reject a lower court ruling that said Varsity could pursue a copyright claim to the design of cheerleading uniforms.
The dispute started when Varsity sued clothing company Star Athletica at the US District Court for the Western District of Tennessee claiming that cheerleader uniforms sold by Star Athletica were “substantially similar” to its own.
But the district court rejected the claim. Varsity’s designs, it said, “are not physically or conceptually separable from the utilitarian function of a cheerleading uniform because ... [they] make the garment they appear on recognisable as cheerleading uniforms”.
Varsity then appealed against the judgment at the US Court of Appeals for the Sixth Circuit which, in a 2-1 decision handed down in August last year, ruled that Varsity’s designs can be separated conceptually from the utilitarian dress designs of another cheerleading uniform.
Michelle Mancino Marsh, partner at law firm Arent Fox, said the case will certainly affect the fashion industry.
“While this case is about cheerleader uniforms, any garment that contains a feature that can be ‘conceptually separated’ (as opposed to physically separated) from the garment has the potential to be copyrighted.”
She added that lower courts have "struggled with what constitutes ‘conceptual separation’", including whether it stretches to bead work, the placement of sequins on a prom gown, Halloween costumes, and restaurant uniforms.
"No matter what the decision, guidance on the proper test will aid everyone in the industry,” she said.
Jonathan Moskin, partner at law firm Foley & Lardner, said: “Clothing designs have been particularly difficult to assess under the varying tests of conceptual or physical separability because of the utilitarian nature of such designs and the ways in which most expressive design elements are so tightly interwoven with the utilitarian functions.”
He added that the case may prove to be “a bookend of sorts with the Apple v Samsung case”, which addresses similar issues in the context of design patents, namely whether to apportion damages based on the specific features of an article deemed to be infringing or to permit recovery based on the entire product.
