In a 6-2 decision, the Supreme Court in Star Athletica LLC v. Varsity Brands, Inc. held that the arrangements of lines, chevrons, and colorful shapes on the surface of cheerleading uniforms are eligible for copyright protection as separable features of the design of those cheerleading uniforms. 

Section 101 of the Copyright Act makes “pictorial, graphic, or sculptural features” of the design of a “useful article” 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.”

Writing for the majority, Justice Clarence Thomas acknowledged that there is widespread disagreement over the proper test for implementing section 101’s separate-identification and independent existence requirements.  In view of the statute, the Court held that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated. 

Applying this test to the surface decorations on cheerleading uniforms, the Court found that the decorations are separable from the uniforms and, therefore, eligible for copyright protection. In particular, the Court discussed "imaginatively removing the surface decorations from teh uniforms and applying them in another medium" such as a painter's canvas.

Writing for the dissent, Justice Stephen Breyer agreed with the majority’s analysis of the law, but concluded that the design features that Varsity seeks to protect are not capable of existing independently of the utilitarian aspects of the article.  The dissent asserted that when the decorations are conceptually removed from the cheerleading uniform, they still form the shape of a cheerleading uniform (i.e., “the useful article of which the designs are inextricable parts”). 

For a complete analysis of this decision, look for the next Renner Otto Updates Newsletter.

Additional Info

  • The Star Athletica decision can be found here.
  • Post by Stephanie M. Williams.  For more information, contact Stephanie or your Renner Otto relationship contact.