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Team Image: Is There Copyright for Cheerleader Uniforms?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Cheerleading designs.jpg

Visual Image Protection:  Can a ccheerleader outfit have enough pep in its design to be protected by copyright? According to the Sixth Circuit Court of Appeal in Varsity Brands v. Star Athletica, (August 19, 2015), the answer is "Yay!"

The challenge with any clothing, including cheerleading outfits, is that copyright doesn't protect "useful articles." Clothing is unquestionably useful. The exception to the rule is that there may be copyright in original design elements that "can be identified separately from, and are capable of existing independently of, the utilitarian aspects of" the cheerleading uniforms. The court looked at the designs by themselves and found they were graphic works capable of copyright protection. It then found the utilitarian aspects to be "cover the body, wick away moisture, and withstand the rigors of athletic movements." The lower court had found there was no separability of what was useful and what was purely graphic design, saying cheerleading uniforms "without team colors, stripes, chevrons" and the like makes them unrecognizable as cheerleading uniforms. They Court of Appeal, however, found that the designs in question could be applied to any surface, and the designs in question could be removed without in any way affecting the useful features identified above.

The issue, not satisfactorily addressed by the Varsity opinion, is that there are only so many design elements that are used for cheerleading outfits, consisting of colors, lines, stripes, and angles. And, at least for traditional ccheerleader uniforms, there are also only so many locations to put these conventional design elements, e.g., around the collar, the sleeve ends, etc. At some point it may be too difficult for conventional ccheerleader uniform designers to rally new creations.

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