“© Our Dresses, Please © Our Dresses!”

On April 10, 2017, in Uncategorized, by Matthew Weiss

By: AshLeigh Sebia*


The Supreme Court delivered an opinion on March 22nd that displayed an unexpected crossover between the worlds of fashion and sports law.  The 5-2 opinion declares that cheerleading uniforms may now be copyrighted.[i]  The case, Star Athletica v. Varsity Brands, allowed the Court to consider the separation of unique and creative art, which is copyrightable, from objects that only have value due to their utility.

The case began when Varsity Brands, the most prominent manufacturer of dance-team and cheerleading uniforms, sued Star Athletica for alleged copyright infringement relating to one of its uniform designs.[ii]  In response to Varsity’s claim, Star argued that the designs, specifically the chevron pattern and colored striping, cannot be separated from their utilitarian function.[iii] In other words, the design is required to serve the purpose of identifying the cheerleaders as such.  Star suggested the Court adopt a test considering whether the design would be marketable aside from its utilitarian function.[iv]  If the Court were to apply this test, the design would likely not warrant a copyright.

The District Court agreed with Star in holding that the pattern could not be separated from its function of identifying the cheerleaders.[v]  On appeal however, the U.S. Court of Appeals for the 6th Circuit reversed this judgment.[vi]  The 6th Circuit held that the design itself did not serve any utilitarian function and further reasoned that, “a plain white cheerleading top and a plain white skirt” still allow for all the stunts that cheering requires.[vii]

Frustrated with the outcome, as well as the many proposed tests for separating utilitarian function from something creative and copyrightable, Star requested the Supreme Court take the case in order to make a clarification regarding this matter.[viii]  The majority held that if a design can be “identified and imagined apart from the useful article,” it may be copyrighted.[ix]   In this case, the chevron pattern and colored stripes could exist separately as a piece of art.[x]

The majority opinion, written by Justice Clarence Thomas, began by comparing the uniforms to a piece of “artwork printed on a t-shirt,” which can certainly be protected by a copyright.[xi]  It emphasized that while copyright statutes do not protect a useful article, the statutes will protect a design of that useful article if it contains “pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[xii]  This began the Court’s “separation” inquiry.  The test the Court used requires a determination of whether the design, if posed on a separate tangible medium rather than a useful article, would be copyrightable.[xiii]  Here, the Court answered this in the affirmative.  The Court reasoned that the designs do in fact incorporate pictorial, graphic, or sculptural features.[xiv]  Moreover, the Court stated that if the chevron and colored stripes were removed from the dresses, they may qualify as works of art rather than merely a depiction of a useful article.[xv]  Thus, Varsity’s design was deemed copyrightable.[xvi]

Justice Stephen Breyer dissented.[xvii]  Breyer agreed with Star, claiming that the designs simply would have no value once separated from their function.[xviii]  According to Breyer, if one were to put the pattern on a blank canvas, he would still be looking at a depiction of a cheerleading dress.[xix]  Therefore, the designs are “not physically separate, nor… conceptually separate, from the useful article[s] [they] depict” and are not copyrightable.[xx]

The majority believed that this fact alone will not disqualify the designs from a potential copyright.[xxi]  This view is erroneous in that it limits copyright protection to articles that are “solely artistic.”[xxii]  In a much broader ruling, the majority opinion expanded this protection to “applied art.”[xxiii]  It will be interesting to see how future courts will apply this decision to cases involving artistic expression intertwined with utilitarian function.

*Staff Writer, Villanova University Sports Law Society Blog; J.D. Candidate, May 2019, Villanova University Charles Widger School of Law.

[i] Ronald Mann, Opinion analysis: Court uses cheerleader uniform case to validate broad copyright in industrial designs, SCOTUS Blog (Mar. 22, 2017), http://www.scotusblog.com/2017/03/opinion-analysis-court-uses-cheerleader-uniform-case-validate-broad-copyright-industrial-designs/

[ii] Joe Mullin, Cheerleading company can get copyrights, pursue competitors, Supreme Court says, ARS Technica (Mar. 22, 2017), https://arstechnica.com/tech-policy/2017/03/cheerleading-company-can-get-copyrights-pursue-competitors-supreme-court-says/

[iii] Id.

[iv] See Mann, supra note 1.

[v] See Mullin, supra note 2.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Id.

[x] See Mann, supra note 1.

[xi] See Mullin, supra note 2.

[xii] See Mann, supra note 1.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] See Mullin, supra note 2.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] See Mann, supra note 1.

[xxiii] Id.


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