Cheerleading Uniform Case Heads to High Court

WASHINGTON (CN) — The Supreme Court agreed Monday to decide whether chevrons and zigzag designs on cheerleading uniforms qualify for copyright protection.

Varsity Spirit Corp. brought the underlying case in Memphis against a competing uniform maker, Star Athletica.

Though Star won the case at summary judgment, a divided three-judge panel of the Sixth Circuit in Cincinnati reversed this past August, saying the precedent "would render nearly all artwork unprotectable."

Per its custom, the U.S. Supreme Court did not issue any comment in taking up the case Monday.

Nineteenth century Dutch artist Piet Mondrian was especially helpful to the Sixth Circuit's reversal.

"Under this theory of functionality, Mondrian's painting would be unprotectable because the painting decorates the room in which it hangs," Judge Karen Nelson Moore wrote for the majority. "But paintings are copyrightable."

Moore noted that Yves St. Laurent's Mondrian collection bears this out.

"Mondrian's artwork or design is separable as a work of art because not only is it possible to recreate the design on t-shirts, grocery bags, cellphone cases, or notebooks, but also it actually has been done: Yves St. Laurent used Mondrian's famous color-blocking and thick, black stripes to create cocktail dresses known as the 'Mondrian look,'" Moore wrote. "Mondrian's arrangement of color blocks and use of stripes are pictorial and graphic features 'that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of' Yves St. Laurent's dress."

Similarly, the Varsity's cheerleading designs are identifiable separately from the article of clothing, and their customers choose which among the company's designs they want incorporated into the same article of clothing.

In contrast, copyright law does not protect dress design such as the shape of the neckline, the style of sleeves, the trouser cut, or pockets, because these are components of a design inseparable from the utilitarian aspects of clothing - to cover the body.

"A collection of uniforms, which includes chef hats shaped like vegetables, tuxedo jackets with a 'distinctive shawl collar styling with a deep V neckline,' and semi-fitted jackets with princess seams and star buttons, does not receive copyright protection," Moore wrote. "Creative and arguably attractive as these articles may be, they are merely inventive designs used to cover the wearer's body and hair."

The graphic designs on Varsity's clothes, however, are more like fabric design than dress design.

"A plain white cheerleading top and plain white skirt still cover the body and permit the wearer to cheer, jump, kick, and flip," the decision states. "The top and skirt are still easily identified as cheerleading uniforms without any stripes, chevrons, zigzags, or color-blocking."

Judge Ralph Guy Jr. joined Moore's opinion, while Judge David McKeague dissented.

"Without stripes, braids, and chevrons, we are left with a blank white pleated skirt and crop top," McKeague said. "This may be appropriate attire for a match at the All England Lawn Tennis Club, but not for a member of a cheerleading squad."

He continued: "Clothing provides many functions, but a uniform at its core identifies its wearer as a member of a group. It follows that the stripes, braids, and chevrons on a cheerleading uniform are integral to its identifying function."

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