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.