Benjamin Appelbaum, Attorney at Law

Cheerleading uniform designs protected by copyright

According to a decision made by the Supreme Court in October, designs on cheerleading uniforms can be protected under copyright laws. In the case in question, Varsity Brands, Inc., a manufacturer of cheerleading uniforms that are popular in schools in New Jersey and around the country, sued Star Athletica LLC for infringing upon copyrights for 5 different designs.

In order to be protected under copyright laws, designs on so-called "useful articles", or items used for a utilitarian purpose like clothing, must be separable. Theirs is a two-part test to determine this. The first part of the test states that the design must be able to be perceived as a two- or three- dimensional art separate from the useful article. More simply, is the design an artwork on its own, separate from the useful article?

The other portion of the test states that, without the useful article, would the design count as a pictorial, sculptural or graphic work? According to the case, the designs on the cheerleading uniforms were indeed separate works of art and had actually been printed on other mediums aside from the uniforms. Because the designs were separable from the uniforms themselves, they were indeed classified as copyrightable. It's believed that this case may set the precedent for similar cases throughout the fashion industry.

Copyright laws can be complex and difficult to navigate. It may not always be clear when they apply and when they don't. Those who are unsure if they have a case may wish to seek the advice and counsel of a copyright law attorney.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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