Under a divided court, the Sixth Circuit U.S. Court of Appeals reversed the lower district court ruling that “a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and color blocks” and therefore serves a function and disqualifies it as copyrightable. Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237, (6th Cir. Aug. 19, 2015).
Judge Moore likened the uniforms to fabric patterns which can be protected by copyright. Further, in light of the Copyright Office’s experience, the court applied a presumption in favor of copyright validity for published manuals and consistent treatment of Varsity’s cheerleader uniform designs.
In determining whether the designs were protectable, the court deemed that it must incorporate pictorial, graphic, or sculptural features that can be separated from and exist independently of the article’s function.
The questions were then: Is the design objectively necessary to the article’s useful function? Can the design be separately imagined as an independent artistic work?
The majority concluded that the function was “to cover the body, wick away moisture, and withstand the rigors of athletic movements,” rather than to identify a cheerleader as a cheerleader. Judge Moore further opined that neither a “decorative” function nor an “identifying” function is properly considered part of what makes an article “useful.”
Given that the dissenting judge, Judge McKeague, closed with a call to Congress or the Supreme Court to clarify the tangled law in this area and that some other circuit courts have concluded with the opposite ruling, this issue will most definitely be revisited.
