Can a cheerleader uniform containing combinations of elements like chevrons, lines, stripes, and angles be protected by copyright? Well, the Supreme Court addressed this exact issue on March 22, 2017, in the case of Star Athletica, L.L.C. v. Varsity Brands, Inc. And, ta da, the answer is yes where a design feature of a useful article (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression— if it were imagined separately from the useful article in which it is incorporated. And the five member majority (authored by Justice Thomas) agreed that this test was satisfied in the present case.
To appreciate the fuss, and decision, some context is needed. Useful articles are not subject to copyright protection, with the lone exceptions of boat hulls and semi-conductor chips. Section 101 of the Copyright Act in pertinent part states: “the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Continue Reading