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Cheerleader Battle at Supreme Court

How cheerleader uniforms may redefine U.S. Copyright law

18 July 2019

Coming to a theater near you: Bring It On: The Argument! The producers of the ubiquitous cheer-leading films probably were not in the audience when the U.S. Supreme Court heard argument in Star Athletica, LLC v. Varsity Brands, Inc., but maybe they should have been.

In the eyes of U.S. intellectual property owners and lawyers, Star Athletica has the potential to be a blockbuster.  The case may bring clarity to one of the thorniest issues in US IP law, namely, what makes an item useful and ineligible for copyright?

Star Athletica and Varsity Brands are rival cheerleading uniform manufacturers.  Varsity copyrighted many of its uniform patterns and decided to be aggressive, be-e aggressive, suing Star Athletica for infringement.  Varsity contends that Star's versions of chevrons, Vs, and stripes are too close to Varsity's and infringe its copyright.  Star Athletica said, ahem, bring it on—those patterns are the essence of cheerleading uniforms and, according to Star, Varsity can't copyright them.  After Star lost in the lower court, the Supreme Court agreed to hear the case to determine whether Varsity's designs were "useful articles" under U.S. law.

The fashion industry has long complained that it lacks the protections other creative profession, because U.S. law has long held that fashion articles are "useful items" that can't be copyrighted.  While Justice Ruth Bader Ginsburg's fashion choices on the bench are the stuff of legend, there is nothing preventing knock-off jabot (the lace collar in the picture at left) makers from hawking replica's of the Notorious RBG's collars down the street.

Trying to figure out what's "useful" under the U.S. copyright act is something like deciding what a catch is in American football or what a foul in the English Premier League is.  The rules are up to interpretation.  Varsity says the patterns of stripes and chevrons on its uniforms are just decoration, totally separate from the uniforms themselves.  If an artist can copyright a painting and print the painting on a t-shirt, the image is still protected by copyright even if the t-shirt is "useful.

Star counters that the placement of Varsity's visual elements is uniquely functional when applied to cheerleader uniforms:  the stripes make the cheerleader look thinner; the Vs make the cheerleader's waist look narrower; the chevrons make the cheerleader look curvier.  In other words, the patterns Varsity is trying to copyright, Star Athletica argues, are essential, functional parts of cheerleader uniforms, much like camouflage on a military uniform.  It is unclear whether special operations soldiers and high school cheerleaders knew their uniforms had so much in common.

At oral argument, the Justices seemed troubled at the thought that Varsity's uniforms would have a monopoly on certain design elements.  Justice Sonia Sotomayor and Justice Stephen Breyer challenged Varsity on the idea that the company was maintaining a monopoly through copyright.  Justice Sotomayor asked whether "the universities that contract with [Varsity] know that they have to buy their uniforms from you for 99 years?" under the copyright act.  Justice Breyer piled on, asking Varsity to "disabuse [him] of [his] notion that we are into monopoly big-time" if Varsity's theory prevails.

The Justices didn't go easy on Star Athletica's line of thinking either.  The U.S. government and Varsity argued that courts would have no way of determining what is and is not "functional" under Star's theory.  An attorney for the United States contended that finding for Star would mean courts would have to consider whether wallpaper that made a room appear larger was copyrightable, upending decades of precedent about two-dimensional art.  At least some of the Justices seemed receptive to the idea that Star's theory is simply unworkable and would turn judges into fashion critics.

Whatever the Court decides, content owners and manufacturers may find themselves up in the air with no guarantee of being caught.  A finding that patterns and décor applied in certain contexts, such as on clothing, are not protected by copyright could dramatically reduce the value of some intellectual property; trigger a barrage of infringing conduct, or both.  A finding that skinny Vs and sassy stripes are protected by copyright could trigger a wave of lawsuits as content owners battle over whether designs previously thought functional and unprotected are actually valuable properties.

Justice Breyer summed up the debate when he noted "the clothes on the hanger do nothing; the clothes on the woman do everything.  And that is, I think, what fashion is all about."  The Court's decision may come down to whether Justice Breyer is right that the person makes the clothes, no matter what the design, or whether, as the old saying goes, the clothes really do make the man.  Er, cheerleader.