Supreme Court Uses Imagination in Ruling Cheerleader Uniform Designs Can Be Copyrighted

At least one justice can't conceive of stripes, chevrons and color blocks as being anything but useful.
Universal Pictures

F-I-G-H-T. Some say fight, fight, fight. We say COPYRIGHT.

On Wednesday, the U.S. Supreme Court ruled in favor of Varsity Brand in the argument that the company's arrangement of stripes, chevrons and color blocks on cheerleader uniforms is entitled to copyright protection. In doing so, the high court not only delivered a blow to Star Athletica, which was accused of infringing copyrighted designs, but also set up a conceptual test that may factor in future disputes involving Hollywood merchandisers and fashionistas.

Copyright law allows for the protection of "any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object," and the question that this case posed was whether the designs on cheerleader uniforms could be seen in aesthetic terms or whether they were just useful, and therefore not eligible to be copyrighted. Although the case before the justices dealt nominally with cheerleader uniforms, the entertainment industry itself has been the scene of similar copyright cases over things like Stormtrooper helmets from the Star Wars films and skin-tight battle suits from Power Rangers.

Writing for the majority (see here), Justice Clarence Thomas holds that a feature incorporated into the design of a useful article (like clothing) is eligible for copyright protection "if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium."

He also says it's not necessary to consider evidence of the creator's purpose nor gather surveys about whether a segment of the market would be interested in buying the design separately from its use on a piece of clothing. Doing so, he writes, "threatens to prize popular art over other forms, or to substitute judicial aesthetic preferences for the policy choices embodied in the Copyright Act."

The notion that copyright extends to design elements imagined as a "two- or three-dimensional work of art" brought a dissent from Justice Stephen Breyer.

He begins by directing readers to look at the designs Varsity submitted to the U.S. Copyright Office:

"You will see only pictures of cheerleader uniforms," writes Breyer. "And cheerleader uniforms are useful articles."

Later, Breyer adds, "Were I to accept the majority’s invitation to 'imaginatively remov[e]' the chevrons and stripes as they are arranged on the neckline, waistline, sleeves, and skirt of each uniform, and apply them on a painter’s canvas, that painting would be of a cheerleader’s dress."

Thomas responds.

"Petitioner similarly argues that the decorations cannot be copyrighted because, even when extracted from the useful article, they retain the outline of a cheerleading uniform," he writes. "This is not a bar to copyright."

In other words, Thomas slams Breyer for his use (or lack) of imagination.

Breyer shrugs off the diss. His larger problem is how the test for "conceptual separability" is applied and the consequences.

Breyer writes that Van Gogh may have painted a pair of old shoes, but even if the shoe painting was "beautifully executed and copyrightable as a painting," it wouldn't entitle the artist to a shoe design copyright. Breyer also mentions Marcel Duchamp's "ready-made" series of artworks. See here, for example.

"What is there in the world that, viewed through an esthetic lens, cannot be seen as a good, bad, or indifferent work of art?" asks Breyer. "What design features could not be imaginatively reproduced on a painter’s canvas?"

Breyer then goes into the "costs" of copyright protection, namely the extension of a monopoly and potential for higher prices. He brings up Congress' decision not to grant full copyright protection to the fashion industry, although he does say that makers of clothing can use patent and trademark laws for protection. By extending their protections to copyright in this manner, he's worried about prohibiting the "reproduction of the surface designs in any tangible medium of expression — a uniform or otherwise."

Such concern doesn't sway the majority of justices, although it does seem enough to at least push Justice Ruth Bader Ginsburg into a concurring opinion that bypasses a separability test in favor of just holding that designs are copyrightable works reproduced on useful articles. In other words, Ginsberg doesn't think imagination is required but for the designer's creativity. But she didn't carry the day either. Give her an "A" for the attempt.