Visual Image Protection: The U.S. Supreme Court has agreed to hear the case, Varsity Brands v. Star Athletica, discussed in an earlier post, namely, the decision of the Sixth Circuit Court of Appeals that recognized copyright protection for relatively ordinary ccheerleader uniforms. The uniforms in question featured the usual variations of chevrons, lines, and shapes (see examples above). The fundamental problem is that copyright protection is not available for “useful articles,” as is the case with any clothing, except where it’s shown the non-functional design elements are sufficiently “original” and conceptually “separable” from the utilitarian features of the article.
The dissenting judge in the last opinion noted that there were already nine different tests that various courts had used to define what “conceptual separability” is. Nevertheless, the Sixth Circuit court created a tenth test. If the Supreme Court drafts an eleventh, that will be the same size as a football team, but it won’t be anything to cheer about unless it becomes, as it should be, the one and only test to be applied.
The best cheerleaders are not only natural dancers but superb athletes, capable of performing perfect splits. Be forewarned, if the current Supreme Court remains in numerical limbo indefinitely with only eight Justices, they could end up with a 4-4 split on the ccheerleader case, and that would be the jjudicial equivalent of a face plant.