One day, while browsing through a competitor’s marketing catalog, a manufacturer of cheerleading uniforms came across cheerleading uniforms that were very similar to the company’s designs. This is how a dispute between two cheerleading uniform companies started, a case that went all the way to the Supreme Court and could have drastic implications in many creative industries.

The Initial Question: Are Uniform Designs Protectable Under Copyright Law?

In 2015, Varsity Brands, a cheerleading uniform designer filed a lawsuit alleging copyright infringement against a competitor, Star Athletica. Star Athletica responded by claiming that Varsity Brands did not have a valid copyright over the uniform designs because the designs served the purpose of shaping the uniform, and therefore are not eligible for copyright protection.

The designs at issue in this case are made up of stripes, zigzags, chevrons, inverted chevrons, angles, and color blocks arranged in such a fashion that accentuate the shape of the uniforms. For example, the strategically placed chevrons, inverted chevrons, and angles in the midriff area help narrow the waistline of the uniform’s top, while a combination of lines and zigzags contour the uniform’s edges on the shirt’s neckline and sleeves, as well as the bottom of the skirt.

Images from appendix of the opinion of the court – Varsity Brands’ uniform designs.

Star Athletica won at the district court, when the court held that Varsity Brands’ design was not eligible for copyright protection. Varsity Brands appealed, the appeals court reversed the district court’s ruling in favor of Varsity Brands, setting up a show-down at the Supreme Court, who agreed to hear the case. The Supreme Court held that the decorative elements on Varsity Brands’ cheerleading uniforms are indeed worthy of copyright protection, despite aiding in the utility of the uniform.

But what does this all really mean and what effects could it have on the marketplace?

The Elements of Proving Copyright Infringement

Copyright law provides protection for “creative works” which includes things like photographs, books, paintings, music and other artistic creations. However, copyright protection can also cover much more, such as advertising copy, computer code, and according to the Supreme Court’s decision, even the stripes, zigzags, chevrons and color blocks on cheerleading uniforms. Copyright law allows a copyright owner to stop others from (among other things) reproducing the copyrighted work without permission.

However, not everything deserves copyright protection. A piece of paper with a circle on it is not considered “creative” enough to warrant copyright protection. Neither are words, short phrases, or slogans. It has also long been held that the shape of an article of clothing is not eligible for copyright protection because it is a “useful article,” and copyright law does not protect the mechanical or utilitarian aspects of a “work.” But where is that line between protectable copyrighted work and unprotected, freely-available work for all to copy? That is a part of the question the Supreme Court was asked to answer in this case.

The Court was asked to answer not whether the cheerleading uniform is copyrightable, but rather whether the designs on the uniform are. To do so, the Court had to determine (1) whether the design could be perceived as a design separate from the cheerleading uniform, and if so, (2) whether the design would qualify for copyright protection.

The Supreme Court Concludes That a Work of Art Affixed to a Uniform Fabric is Protectable Under Copyright Law

The Court ultimately held that the cheerleading uniforms designs were capable of copyright protection, even if the designs contribute to the utilitarian aspect of the uniform. The Court held that the designs, when imagined separate from the cheerleading uniform, would qualify for protection. For example, if the stripes and zigzags were painted on a canvas, then the design would qualify for copyright protection separate from the unprotectable and utilitarian clothing item. The opposite of that is also true, the Court held. If, for example, someone made a cardboard model of a car, then the cardboard model may be protected under copyright law as a sculpture that replicates the car, even if the actual shape of a normal car is not protectable under copyright law.

So what does this decision mean?

The Supreme Court stated that:

To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the . . . work of art fixed [to] . . .the uniform fabric. Even if [Varsity] ultimately succeed in establishing a valid copyright in the surface decorations at issue here, [Varsity] ha[s] no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear. They may prohibit only the reproduction of the surface designs in any tangible medium of expression—a uniform or otherwise.

For anyone in the fashion or manufacturing industries, this decision opens major new avenues. Shapes and designs on apparel or accessories for example, that would have been previously barred from copyright protection based on functionality, might now be able to achieve protection. The Court’s decision means that designers may seek copyright registration of artwork that may increase the usefulness of an article of clothing, such as, perhaps, intricate neon designs on a jogging jacket, or a sculptural design on the shoulders of an avant-guard coat. As the aftermath of the case unfolds, expect the district and appeals courts to revisit the issue of whether something can be protected under copyright law again in the future.