SCOTUS is Talking Fashion, Cheerleader Fashion

By: Doriyon Glass*| Staff Writer

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The Supreme Court’s decision in Star Athletica, LLC v. Varsity Brands, Inc., may have huge implications on the fashion industry.  Varsity Brands (Varsity) is one of the largest cheerleader uniform suppliers, they claim their uniforms contain something unique: copyrightable works of art.  Varsity received U.S. copyright registrations on five designs in which it claims that Star Athletica’s (Star) cheerleading uniforms infringe on.  The issue is whether these designs on cheerleader uniforms can be protected by the Copyright Act.

It has been well recognized that copyright law protects the “expressive” content of a work, not the functional or useful ideas or objects.  For decades courts have struggled to “define the line between copyright-protected expressive aspects and the utile aspects of tangible objects.”  Since the Supreme Court has not revisited this topic since a 1954 decision, the lower courts have struggled to make consistent tests for drawing the necessary line.

The parties in this case disagree on how to treat a graphic design that is influenced by functionality of the clothing it is applied to.  It is Star’s position that protection should only be given if the design feature is entirely separate from the useful function.  Star contends that the designs make the garments cheerleader uniforms, and the placement of the stripes, zigzags, and chevrons are functional because they make the wearers look thinner and taller, and therefore are not conceptually separable.  Varsity, conversely, argues that a work is conceptually separable if it can exist on another tangible medium.  Since the designs can exist on any piece of fabric, Varsity believes there should be a bright-line rule protection for all two-dimensional designs.

The District Court of the Western District of Tennessee held in Star’s favor, explaining that without designs like zigzags, stripes, and chevrons, cheerleading uniforms would not be cheerleading uniforms.  The Sixth Circuit came to a different conclusion, holding that the designs can be protected by the Copyright Act.  It is now up to the Supreme Court to make a decision.

In addition to the legal considerations, there are also effects on the fashion industry and market that must be taken into account.  A broad protection will give industry leaders considerable market power.  Here, a broad protection allows Varsity, the industry leader, to stop Star, a smaller firm, from selling  garments similar to the market leader at substantially lower prices. Justice Sotomayor noted that a ruling in favor of Varsity could kill the knockoff industry, which trademark law or patent designs have not been able to do.  Additionally, if Varsity’s copyrights are valid, they could have a potential monopoly on the cheerleading uniform business. On the other hand the fashion industry is worried about a ruling in favor of Star.  The Council of Fashion Designers of America filed an amicus brief arguing that a ruling for Star could deteriorate the already limited protection available to fashion designers.  The Council’s members include over 500 clothing and accessory manufactures like Ralph Lauren and Michael Kors, and their worry is that they will be left “defenseless against copyists.”  The Supreme Court is expected to render a decision in 2017, and the decision may impact the entire fashion industry.

Doriyon Glass is a second year law student at Wake Forest University School of Law. She is interested in employment and higher education law. Before law school she studied Legal Studies and Criminal Justice at Gannon University in Erie, Pennsylvania.