When you strip off the logos from your typical cheerleader’s uniform — especially in high school and college — you’re left with something that is still distinctly an outfit meant for a cheerleader. But can a uniform manufacturer copyright that basic uniform design? It’s a question currently before the U.S. Supreme Court, and one whose answer could have far-reaching implications.

Can You Copyright Clothing?

Section 113(b) of the Copyright Act excludes “useful articles” from copyright protection. The idea is to prevent every little thing from being copyrighted and monopolized. You can have a copyrighted piece of artwork printed on a mug but that doesn’t mean the mug itself has copyright protection.

Unique useful items can enjoy patent protection, but that is more difficult to obtain and doesn’t last as long as a copyright. This distinction is more important today than it was when the Copyright Act was written, as corporate copyrights can now last a century or more.

Fashion design presents a legally problematic gray area for copyright. Just like the aforementioned mug, you can have a T-shirt with a copyrighted print on it, but that doesn’t necessarily turn the shirt into a separate copyrighted piece.

And if you allow that using certain colors on an article of clothing constitutes a copyrightable work, what’s to stop someone from trying to make the claim that they have copyrighted all black shirts? Yet there’s still some room for copyright in fashion. For instance, you can copyright an original fabric print, even if you can’t necessarily copyright the dress made from it.

Which brings us to the battle of the cheerleader uniforms.

Give Me A ©!

In 2010, a uniform company called Star Athletica published a catalog of basic cheerleader uniform designs. Competitor Varsity Brands sued Star Athletica, alleging — among other things — copyright infringement.

Below are two of the exhibits submitted along with the original Varsity complaint. On the left is a Varsity design and on the right is a picture from the Star Athletica catalog:

A U.S. District Court in Tennessee sided with Star Athletica in March 2014 [PDF], ruling that the aspects of the uniform that Varsity claimed copyright on were so vital to the notion of what a “cheerleader uniform” is as to not be afforded copyright protection.

“[T]he colors-and-designs component of a cheerleading uniform cannot be conceptually separated from the utilitarian object itself,” explained the judge. “Copyright protection, as a matter of law, cannot apply.”

On Second Thought

However, in Aug. 2015, a split Sixth Circuit Court of Appeals reversed the lower court’s ruling, and said that Varsity could indeed bring a copyright claim on its uniform designs.

In the Sixth Circuit’s majority opinion [PDF], the lower court should have given more importance to the fact that the Copyright Office had granted Varsity’s application on these designs.

Additionally, the panel concluded that while the Varsity designs are of useful articles — namely, cheerleading uniforms — the copyrighted designs themselves are not intrinsically important to the utility of a cheerleader uniform.

In other words, this isn’t like removing the steering wheel from a car; you can still have a functioning cheerleader uniform that doesn’t infringe on the Varsity designs.

The appeals panel said that the utilitarian needs of a cheerleader uniform are to “cover the body, permit free movement, and wick moisture” away from the wearer.

“A plain white cheerleading top and plain white skirt [would] still cover the body and permit the wearer to cheer, jump, kick, and flip,” explains the majority.

Judge David McKeague seized upon this sentiment in his dissenting opinion.

“Without stripes, braids, and chevrons, we are left with a blank white pleated skirt and crop top,” writes McKeague. “[T]he reasonable observer would not associate this blank outfit with cheerleading. This may be appropriate attire for a match at the All England Lawn Tennis Club, but not for a member of a cheerleading squad.”

To The Supremes

Star Athletica petitioned the Supreme Court in Jan. 2016 [PDF], arguing that the Sixth Circuit had created an entirely new test for determining whether a useful article was copyrightable, and that the panel broke from existing precedent in granting a significant amount of importance the existing copyrights for the Varsity designs.

The smaller company got some heavyweight support in briefs from groups like Public Knowledge and the American Library Association, and a coalition of intellectual property law professors from Georgetown, NYU, U.C. Berkeley, Notre Dame, Stanford and other colleges. These academics contend that the proper test for separability — whether a useful item’s design elements can be copyrightable — is “only whether the claimed design could be removed from the article and exist on its own as a pictorial, graphic or sculptural work that is not a useful article.”

Meanwhile, Varsity lined up its own big-name support, including the Fashion Law Institute and a trio of academics from Harvard and NYU. In the eye’s of Varsity’s supporters, Star Athletica is trying to “carve out garment designs as a special category of works that are unprotectable,” which they contend would “undermine the coherence of copyright law and would render unprotectable not only garment designs but a far broader swath of works, including many that have long been protected” like wallpaper, fabric, and flooring print designs.

The 100-Year Monopoly?

The two sides had their day before the eight Supreme Court justices on Monday, and the transcript of the discussion [PDF] gives little indication of which direction the court will ultimately go when it decides this case, though it did spark some interesting discussion.

The attorney representing Star Athletica repeatedly brought up the notion that granting a clothing manufacturer copyright on a basic design is effectively handing them a 100-year monopoly on that product. Some justices grabbed on to that idea, while others weren’t as convinced.

“All women’s clothes have design. All men’s clothes have design. For a hundred and more-than-that years, the fashion industry has not enjoyed copyright protection,” said Justice Stephen Breyer. “If suddenly in this case we say that dresses are copyrightable — and they are because every one of them has some design — perhaps we’ll double the price of women’s clothes.”

Likewise, Justice Sonia Sotomayor questioned Varsity about whether or not the schools who buy uniforms from the company know that, if this copyright exists, they can’t get something similar from a competitor for the next century.

“If you have a copyright on this design, and they have adopted their school colors, orange and black,” then aren’t they stuck with Varsity, she asked the company’s attorney.

He countered that “There are many, many, many variants available, both copyrighted and uncopyrighted… of cheerleading uniforms, that, you know, Varsity and its competitors can sell.”

Justice Elena Kagan said that even if a company were to hold monopolies on individual cheerleader uniform designs, “can’t the school just go to somebody who puts the zigzag where the chevron was, or the chevron where the zigzag was, or makes it a couple of different colors or adds another stripe?”

The Star Athletica attorney said it would be problematic because the copyright holder “would claim that it was too close to the original… there are only certain places that these stripes and chevrons and color blocks can go, otherwise it doesn’t look like a cheerleader uniform anymore.”

Justice Breyer also discussed the implications of clothing copyright on the legal system, noting that “any good designer or lawyer could go and take any dress or suit, just about, and produce a picture that looks very much like that and then sue the companies that use the same dress or style.”

Additionally, theorized Breyer, wouldn’t a ruling in Varsity’s favor mean “allowing copyright for virtually… every design of a useful article, the very thing that Congress said they did not want?”

A comment by Justice Sotomayor cut right to the core of what she believes is the intention of the copyright claims.

“You’re killing knock-offs… with copyright,” she said to Varsity’s attorney. “You haven’t been able to do it with trademark law. You haven’t been able to do it with patent designs. We are now going to use copyright law to kill the — the knockoff industry. I don’t know that that’s bad. I’m just saying.”

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