By Yonah Reback

It’s not the first time the US Supreme Court has played “fashion police,” and it probably won’t be the last. In Star Athletica, LLC  v. Varsity Brands, Inc., however, the Court’s review of whether designs on cheerleading uniforms can be copyrighted promises to clarify an ambiguity that has been called “the most vexing, unresolved question in copyright law.”

The case traces back to 2010, when Varsity, the world’s largest manufacturer and distributer of cheerleading uniforms, sued upstart competitor Star Athletica for allegedly infringing on its uniform designs. Varsity claimed that its uniforms qualified for copyright protection because the stripes, chevrons and other design elements were “separable” from the utility of the garment. In turn, Star Athletica countered that cheerleading uniforms could not qualify for copyright protection due to their “useful nature.” While a federal judge ruled in favor of Star Athletica in 2014, the Sixth Circuit reversed that decision in 2015. In response, Star Athletica petitioned for certiorari to the Supreme Court.

In granting certiorari this past May, the Supreme Court effectively acknowledged the need to clarify the ambiguity within the Copyright Act that is fueling the litigation between Varsity and Star Athletica. Section 113 of the Copyright Act states that works of a “useful nature” will not be afforded protection under the law. In simple terms, this means that no one may copyright anything “useful,” like a bathroom sink or a lamp. Accordingly, in the context of fashion, designs relating to the functional nature of a garment cannot be copyrighted. However, if artistic elements of a garment can be identified as original and separable from the garment’s utility, copyright protection is available. While the distinction may seem clear in the abstract, courts have struggled to apply a uniform standard for determining what constitutes “separability” from an object’s utility. It is for precisely this reason that the fashion industry is greatly invested in the outcome of Star Athletica.

Fashion designers of all kinds can identify with the respective positions of the two parties. Varsity, in essence, represents the interests of elite fashion designers seeking to maintain a system in which variable “separability tests” have yielded decisions in their favor. Prestigious labels like Ralph Lauren and Michael Kors, as part of The Council of Fashion Designers of America, are backing Varsity’s argument that the designs on its uniforms are not inextricably intertwined with the garment’s utility. As decorative elements of a cheerleading uniform, Varsity contends that its unique art is detached from the utility of the garment enough to merit copyright protection. Simply put, its decorative spin on a uniform doesn’t in any way impact the garment’s usefulness. If the Court were to affirm this rationale, it would signal a major affirmation and victory for the Goliaths of the fashion industry.

Star Athletica, on the other hand, represents the minority players in the fashion world. Though Varsity has branded Star Athletica as an agent of the “knockoff industry,” the company represents far more than imitation artists looking to turn a quick dollar. Star Athletica’s petition can be understood as part of the broader battle within the world of intellectual property over protecting original art without undermining competition. Within this framework, Star Athletica’s belief that Varsity’s stripes and colors function as part of their uniform’s utility takes on a much greater significance.

As Star Athletica sees it, a cheerleading uniform would be nothing more than an unrecognizable garment without certain decorative features. Moreover, Star Athletica submits that the “lines and zigzags” on Varsity’s uniform serve the utility of making cheerleaders appear slimmer. For the Court to side with Varsity, in Star Athletica’s view, would be as egregious as granting a company an exclusive right to manufacture useful items like a pair of socks. While Section 113 of the Copyright Act recognizes a right to copyright unique designs, Star Athletica contends that construing this right too broadly would limit free expression and creativity. Beyond the financial ramifications of its case, Star Athletica’s concern over the prospect of copyright law impinging on creativity has already been echoed by Justice Sonia Sotomayor, who questioned whether Varsity was using copyright law to “kill the knockoff industry.” Though she also added, “I don’t know that that’s bad. I’m just saying.”

If for no other reason than hearing Justice Stephen Breyer suggest that “the clothes on the hanger do nothing; the clothes on the woman do everything,” this case has rightfully amused the public. But beyond its humorous aspects, the outcome of Star Athletica, LLC v. Varsity Brands, Inc. has the potential to finally establish much clearer bounds of copyright protection for clothing. Whether the Court will actually advance a test for determining separability that balances both the need for copyright protection and a competitive market remains to be seen.

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