We previously wrote about the copyright battle between two of the largest cheerleader uniform manufacturers. Plaintiff Varsity Brand, Inc. claimed that Star Athletica, LLC had infringed its copyrights by manufacturing cheerleader uniforms with similar design elements, like stripes, chevrons, zigzags and color blocks. The Supreme Court granted certiorari to resolve at least nine conflicting tests for “separability”: the test as to whether the decorative elements can be “identified separately from, and …existing independently of, the utilitarian aspects of the article.” (17 U.S.C. § 101).
Justice Thomas, writing for the 6-2 majority established a two-part test:
[T]he artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two-or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic or sculptural work either on its own or in some other medium if imagined separately from the useful article.
Relying entirely on the text of The Copyright Act, the Court concluded that “if the arrangements of colors, shapes, stripes and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied to another medium-for example, on a painter’s canvas-they would qualify as ‘two-dimensional … works of …art’ §101.”
The Court upheld the 6th Circuit’s decision that design elements, like those on Varsity’s cheerleader uniforms, were subject to copyright protection but remanded the case for further determination as to whether Varsity’s surface decorations “are sufficiently original to qualify for copyright protection.” Fn 1.
The Court’s decision may have wide implications in the clothing and furniture industries, where design elements are often intertwined with the utilitarian elements of the products.