On May 2, 2016, the US Supreme Court granted certiorari in Star Athletica LLC v. Varsity Brands Inc. (84 USLW 3407, US, May 2, 2016 (No. 15-866)) to consider whether two-dimensional graphic designs on apparel are entitled to copyright protection as “pictorial, graphic, and sculptural works” under § 101 of the Copyright Act of 1976 (Copyright Act).  § 101 only allows copyright protection for useful articles’ pictorial, graphic, or sculptural features if such features can be identified separately from, and are capable of existing independently of, the utilitarian aspects of an article.

Varsity Brands Inc. (Varsity) sued Star Athletica LLC (Star), alleging that Star infringed its copyright-protected cheerleading uniform designs for “two-dimensional artwork”, which include graphical elements such as stripes, chevrons, zigzags, and colorblocks. In defence, Star alleged that Varsity’s copyright registrations were invalid because clothing is a useful article and therefore ineligible for copyright protection.

In this case, the District Court entered a summary judgment for Star by defining Varsity’s uniforms as having a utilitarian function as uniforms for cheerleading so as “to clothe the body in a way that evokes the concept of cheerleading”. However, on appeal, the Sixth U.S. Circuit Court of Appeals reversed the District Court’s decision and concluded that the graphic features of Varsity’s designs were separately identifiable because customers could identify differences between the graphic features of each of Varsity’s designs, and thus a graphic design and a blank cheerleading uniform can appear “side by side” (No 14-5237, reported earlier on E-TIPS® Newsletter here).

E-TIPS® ISSUE

16 06 15

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