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We've Got Copyrights. Yes, We Do.

Just in time for the fall football season, the Sixth Circuit Court of Appeals recently issued a ruling on the question of what makes a cheerleading uniform a cheerleading uniform.

If you have a favorite football team, professional or college, then you probably also have a favorite cheer squad that spends time on the sidelines during games trying to coordinate fan support whether your team is winning or losing. And, of course, those cheerleaders are always wearing matching cheerleader uniforms. No two are alike. If they were, what would be the point?

Cheerleader-Costume-214x300.jpgBut over the years, problems have arisen when the designers of cheerleader uniforms have tried to stop competitors from making confusingly similar designs. After all, there are a lot of teams playing football and there are only so many ways to design a cheerleader uniform.

Recently, the Sixth Circuit Court of Appeals had the opportunity to address (no pun intended) the issue of copyrightability of cheerleader uniforms in a case involving Varsity Brands, LLC and Star Athletica, LLC. In the district court, Varsity had sued Star for copyright infringement arising from competing cheerleader uniform designs. Star contested Varsity's copyright registrations and the district court agreed, ruling in favor of Star on a summary judgment motion.

However, on appeal in Varsity Brands, et al. v. Star Athletica, the Sixth Circuit, in a divided opinion (meaning not all the judges agreed), the court ruled in favor of Varsity, which held a valid copyright registration through the U.S. Copyright Office. In reaching its final opinion, the court had to first resolve three key issues related to whether a two-dimensional graphic design is a separable part of a useful article and therefore eligible for copyright protection.

First, the court had to determine what level of deference to give the fact that the Copyright Office had initially approved Varsity's registration of its copyright in the uniform design. Using what is commonly known as the Skidmore deference (a lower level of deference than that established in the Chevron case), the court reasoned that the Copyright Office's experience, published standards manual, and consistent treatment of Varsity's design registrations argued in favor of copyright validity.

Next, the court had to consider whether or not the designs were even protectable. Finding that cheerleader uniforms serve an intrinsically utilitarian function and are therefore a "useful article," the court had to determine if the design incorporated pictorial, graphic, or sculptural features that could be separated from and exist independently of the article's function. The court used what is known as the "hybrid approach" (one of many available) to ask questions such as: What process was used to design the uniform? And, is the design objectively necessary to the article's useful function?

Ultimately, this proved to be the key question and the dissenting justice disagreed with the majority on the issue of how to define the useful function of uniforms. As the majority decided, the utilitarian function of the cheerleader uniform is "to cover the body, wick away moisture, and withstand the rigors of athletic movements." Using this approach, the majority reasoned that the stripes and zigzags incorporated into the design were decorative, not functional, and therefore protected.

Dissenting Judge David W. McKeague defined the uniform's function more narrowly as being to identify a cheerleader as a cheerleader. However, Judge Karen Nelson Moore, writing for the majority, countered that neither a "decorative" function nor an "identifying" function" properly should be considered in deciding what makes an article a "useful" article. And, realizing that in attempting to bring some clarity to this convoluted area of copyright law the court may simply have increased the confusion, Judge McKeague invited Congress or the U.S. Supreme Court to have the final say on the subject.

Why It Matters. There has long been disagreement amongst the courts over the issue of the protectability of clothing designs, including fabric and textiles patterns and other designs, but the more courts have considered the issue the more confusion they have wrought. And whether the uniforms in question are for football or baseball players or for cheer squads, the significant time, effort and expense invested in new designs argues for some level of copyright protection. The problem has been that fundamental concepts of copyright law argue against giving strong protection to such designs.

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