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Varsity Brands


You may recall that, beginning in 2005, we obtained numerous U.S. copyright registrations for the graphic designs that our client Varsity Brands, the leading manufacturer of cheerleading apparel in the U.S., uses on its cheerleading apparel and other articles.  When Star Athletica copied some of Varsity’s original designs, Varsity brought suit in the U.S. District Court for the Western District of Tennessee.  The district court issued summary judgment for Star Athletica, holding, in an inventive opinion, that “designs and colors” applied to garments were not copyrightable because they made the garments recognizable as cheerleading uniforms, and therefore were not separable from the garments’ utilitarian function of “cloth[ing] the body in a way that evokes the concept of cheerleading.”  On appeal, the Sixth Circuit Court of Appeals, in a matter of first impression for that court, reversed the district court’s decision and adopted most of our arguments, holding that because Varsity’s graphic designs could be identified separately from, and were capable of existing independently of, the utilitarian aspects of the garments – to cover the body, permit free movement and wick moisture – they were protectable subject matter under the Copyright Act.  One dissenting judge called on Congress or the Supreme Court to clarify the copyright law with respect to garment design.

The Supreme Court answered the call, and we participated in the briefing and in persuading the United States to participate as amicus curiae for Varsity.  The Supreme Court affirmed the Sixth Circuit’s decision, holding that an 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.  “Because the designs on the surface of respondents’ cheerleading uniforms in this case satisfy these requirements, the judgment of the Court of Appeals is affirmed.”  Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).

Editor’s note:  As we previously have noted, this case is a good reminder that in the U.S., fashion companies may protect certain aspects of apparel designs under copyright, trade dress or design patent law.  In Europe, there are additional protections available for the silhouettes of, and surface designs on, apparel.

Prior results do not guarantee future outcomes.

For further information, contact Thomas Kjellberg


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