Varsity Brands, Inc. designs, makes, and sells cheerleading uniforms and has obtained or acquired more than 200
Question:
Varsity Brands, Inc. designs, makes, and sells cheerleading uniforms and has obtained or acquired more than 200 copyright registrations for two-dimensional designs that appear on the surface of their uniforms and other garments. The designs are primarily “combinations, positionings, and arrangements of elements,” including “chevrons . . . , lines, lines, curves, stripes, angles, diagonals, inverted [chevrons], coloring and shapes.” Varsity Brands sued Star Athletica, L.L.C., which also markets and sells cheerleading uniforms, for infringing their copyrights on five designs. Star Athletica asserted that the designs were not eligible for copyright protection.
The Copyright Act of 1976 defines copyrightable subject matter as “original works of authorship fixed in any tangible medium of expression.” Works of authorship include pictorial, graphic, and sculptural works, which are defined to include “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints, and art reproductions.” A work of authorship is fixed in a tangible medium of expression when it is embodied in a material object from which it can be perceived, reproduced, or otherwise communicated. For copyrighting a pictorial, graphic, or sculptural work incorporated into a “useful article” (i.e., an article that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information), the “design of the useful article” is considered a copyrightable pictorial, graphical, or sculptural work “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Star Athletica argued that the designs were inseparable from the utilitarian aspects of the uniform because the uniforms would not be as useful without the designs, since the garment would then not identify the wearer as a cheerleader.
Are the designs on the surface of the Varsity Brands cheerleading uniforms copyrightable? Why or why not? [Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).]
Expert Answer:
