The United States Court of Appeals for the Sixth Circuit has ruled that cheerleader uniforms are eligible for federal copyright protection. Varsity Brands, Inc., Varsity Spirit Corporation, Varsity Spirit Fashions & Supplies, Inc. sued Star Athletica, LLC alleging five counts of copyright infringement in the United States District Court for the Western District of Tennessee at Memphis. Varsity designs and manufactures apparel and accessories for use in cheerleading and other athletic activities which are sold online as well as through advertising in catalogs. Star markets and sells uniforms for cheerleading as well as for multiple sports such as football, baseball, basketball, and lacrosse.
Varsity obtained copyright registration for “two-dimensional artwork” for the five designs which were the subject of its lawsuit. Star argued that the copyrights are not valid because the designs are for useful articles which are not copyrightable and the pictorial, graphic, or sculptural elements of Varsity’s designs are not physically or conceptually separable from the uniforms, which makes the designs ineligible for copyright protection. The district court entered summary judgment in favor of Star concluding that Varsity’s designs were not copyrightable, which brought this appeal to the United States Court of Appeals for the Sixth Circuit.
Varsity appealed the district court’s entry of summary judgment on three grounds. First, Varsity argued that the district court did not give the appropriate deference to the Copyright Office’s determination of copyrightability. The Court of Appeals agreed with Varsity and held that the district court did not give greater deference to the Copyright Office’s determination that a design is protectable under the Copyright Act.
Second, Varsity argued that the district court used the wrong approach to determine whether a design is a protectable pictorial, graphic, or sculptural work that is separable from the utilitarian aspects of the article. The two ways to determine whether a pictorial, graphic, or sculptural work is separable from the utilitarian aspects of an article is through physical separability and conceptual separability. The Copyright Office defines the physical-separability test as follows: “Physical separability means that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.” The Court of Appeals held that the Copyright Act protects the “pictorial, graphic, or sculptural features” of a design of a useful article even if they cannot be physically removed from the useful article, as long as they are conceptually separable from the utilitarian aspects of the article.
Last, Varsity argued that its designs are copyrightable as a matter of law because they are graphic works and not useful articles. “A ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” The Court of Appeals concluded that the graphic features of Varsity’s designs “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of [cheerleading uniforms].” The Court of Appeals held that Varsity’s graphic designs are copyrightable subject matter thereby vacating the district court’s judgment in favor of Star and entered partial judgment for Varsity on the issue of whether their designs are copyrightable pictorial, graphic, or sculptural works.