Between October 2016 and June 2017, the Supreme Court will decide if cheerleading uniforms can be protected under copyright law. Varsity, an athletic clothier, holds multiple copyright designs for cheerleading uniforms. In fact, Star attempted to enter the cheerleading uniform market in 2010 and was immediately sued for copyright infringement by Varsity.
The appeals court ruled in favor of Varsity, stating that their designs were “copyrightable pictorial, graphic or sculptural works.” The Supreme Court will apply U.S. copyright laws and test to see if the copyrighted designs are “substantially separate from the product attached.”
The “separability test” looks at the elements in question to decide if they are solely a result of artistic desire and are independent of the function of the product itself. If the element is required for the product to function in its intended manner it is not copyrightable, no matter how aesthetically pleasing the element may be.
This case has risen to the Supreme Court due to the type of item that the element is being separated from. Without the designs on the uniform would it still be considered a cheerleading uniform? This case blurs the line of copyright law protection for pictorial and graphic designs. The Supreme Court will use this case to clarify the scope of what will be protected under federal copyright law.
I expect the Supreme Court to uphold the ruling of that the designs are copyrightable, but this case will be cited for years to come in law schools.