US Court of Appeals for the 6th Circuit Finds Design of Cheerleading Uniforms are the Proper Subject of Copyright

On August 19, 2015, the US Court of Appeals for the 6th Circuit (6th Circuit) delivered its judgment (a split decision) in Varsity Brands et al v Star Athletica, No 14-5237 (6th Cir 2015), reversing a lower court ruling that the design of stripes, chevrons, zigzags and colour blocks (design elements) on cheerleading uniforms cannot be the subject of copyright because they are not physically or conceptually separable from the utilitarian function of the garment.

A majority of the 6th Circuit found that the particular arrangement of design elements were not necessary to garment’s utilitarian function as an athletic garment which was to “cover the body, wick away moisture, and withstand the rigors of athletic movements.” The 6th Circuit majority rejected the alternative argument that the design of a cheerleading uniform is not protectable by copyright because the decorative function of its design elements is itself utilitarian in nature.  In their view, such an interpretation “would render nearly all artwork unprotectable.” As a result, the 6th Circuit vacated the judgment of the lower court, substituted a partial judgment in favour of the appellant on the sole issue of whether the cheerleading uniforms are protectable by copyright, and remanded the case to the district court for further proceedings.