https://archive.org/details/LegalGeekEp97
Varsity Brands is the largest supplier of cheerleader uniforms in the U.S., and it registered copyrights in many designs they sell on cheerleader uniforms. These registrations purport to cover specific stripes and chevron designs on uniforms, which are fairly well-known design elements of such uniforms.
An up-and-coming competitor named Star Athletica was sued in 2010 for copyright infringement by Varsity Brands. Star Athletica argued in court that cheerleader uniforms were useful goods, which are disqualified from copyright protection because useful goods are typically covered in the patent realm. The counterargument was based on an argument that the expressive design elements intertwined with a useful apparel item were "conceptually separable" enough to be eligible for separate protection under copyright.
This issue of what is conceptually separable from a useful item has confounded lower courts, with the regional Courts of Appeal having about 9 different tests with varying factors for determining when designs on a useful item can be copyrighted. The reason this determination is so important is that design patent protection lasts for only 15 years, while copyright protections often exceed 100 years. For a company like Varsity Brands, copyright protection offers a decades long monopoly against competition.
The Supreme Court ruled 6-2 that the tests for conceptual separability needed to be harmonized into one test, that being whether a feature can be perceived as a 2D or 3D work of art separate from the useful article. The feature must still qualify as a protectable expression when imagined separately from the useful article into which it is incorporated.
As great as that test sounds for adding consistency across the country, the actual application of the test could still prove contentious in fields like apparel. Indeed, the dissent applied the same test as the majority and came to the opposite conclusion, that the chevrons and stripes were not conceptually separable as protectable expressions apart from the uniforms. The majority's decision was not a major landmark in either direction, as courts will still need to wrestle with the facts in fields such as apparel, which do not fit neatly into any branch of IP protection under U.S. law.
So Varsity Brands wins this battle, as the Supreme Court says their registered designs are separable enough to be eligible for copyright. But before Varsity Brands can successfully argue "Give me a (C)" and block the competition, another hurdle must be overcome in ongoing litigation. The Supreme Court was not presented and did not decide whether the chevrons and stripes are original enough to merit copyright, which is another requirement above and beyond being conceptually seperable from the useful apparel item. Legal experts still think this will be a tough battle for Varsity Brands to win, regardless of the win this week on separability.
The Bottom Line is, the Supreme Court often steps in when regional courts cannot agree on how to resolve a legal issue, as was the case in this copyright rule. However, they typically do not go beyond the specific issues presented, and as discussed here, that means the legal competition continues in the courts for fields like cheerleader uniforms. Maybe the legal teams can bring their own spirit squads to help cheer them on to victory.
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