Usefulness of Cheerleading Outfits Becomes a Copyright Debate for SCOTUS

The usefulness of cheerleaders at sporting events is debatable. Sure, they can get the crowd pumped up by doing some extravagant tumbles while hooting and hollering team fight songs. But separate the cheerleaders from the game and all you really have is attractive young women in sequenced outfits adding minimal value to the players on the field. The cheerleader's uniform, on the other hand, appears to hold a little more weight when it comes to the usefulness to a copyright.

Last month, the Supreme Court grant certiorari in Star Athletica v. Varsity Brands to determine what is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act? The case lays out 10 different test that are used to determine whether something is a “useful article.” The Supreme Court’s task is to choose the one that works the best.

Stripes, Chevrons, and Zigzags

The opening sentence of the Sixth Circuit’s opinion asks “are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?” Well, if you are a teenage boy, this is probably the last thing you noticed. However, it is an interesting point. If one was to describe a cheerleader uniform to a time traveler from the 1800’s, how exactly would you do so?

Varsity Brands (“Vasity”) is the largest supplier of cheerleader uniforms through the United States. As most corporations do, Varsity filed copyright protections for several of their cheerleader designs. Star Athletica (“Star”), a rival company, claims that Varsity’s copyrights are invalid because they are unprotectable “design[s] of … useful article[s]. 17 U.S.C. §101 (2012). While the district court agreed with Star, the Sixth Circuit decided that the stripes, chevrons, and zigzags are much more than useful articles. The court held that the Copyright Act protects the “pictorial, graphic, or sculptural features” of a design of a useful article even if those features cannot be removed physically from the useful article, as long as they are conceptually separable from the utilitarian aspects of the article.”

A useful article is defined by the court as an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” The Sixth Circuit lays out nine tests (yes, NINE!) used by the other circuits and, instead of using one of those nine, it then provides its own test. According to the Sixth Circuit, the following series of questions must be answered to determine whether or not an item can be considered a useful article:

1.   Is the design a pictorial, graphic, or sculptural work?

2.   If the design is a pictorial, graphic, or sculptural work, then is it a design of a useful Article?

3.   What are the utilitarian aspects of the useful article?

4.    Can the viewer of the design identify “pictorial, graphic, or sculptural features” “separately from . . . the utilitarian aspects of the useful article?”

5.   Can the pictorial, graphic, or sculptural features” of the design of the useful article “exist independently of the utilitarian aspects of the useful article  from . . . the utilitarian aspects of the useful article? 

Gotta Keep’em Separate?

The court seems to harp on the necessity of whether or not the stripes, chevrons, and zigzags can be separated from the usefulness of the cheerleader uniform.  Since a cheerleader uniform is simply just athletic wear meant to keep the boys and girls jumping up and down in them from overheating, the usefulness of the cheerleader uniform is held mainly in that material. Therefore, the designs placed over this material can be separated from the usefulness of the article and can be receive copyright protection.

Star argues that without the zigzags, chevrons, and what-nots, people would not be able to tell who those super enthusiastic persons on the sideline are. But, when you think about it, what else would those people be? The pom-poms in my mind is a dead-giveaway what these people are trying to do.

While this concept of usefulness can seem alien, the court begs that you think of a chair when thinking about separability. A chair on its own is a useful article because the point of the chair is for it to be used as a place to sit. However, if the chair is littered with designs on the seat and backing, then those designs are considered to be separable and therefore, copyrightable.

Make sense? Probably not. But, SCOTUS will be looking make heads out of what it means to be a “useful article” next fall when the court reconvenes. And if the court continues to grant cases at its current pace, then this might be the most interesting case that SCOTUS nerds will get.