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Gimme a C! … for copyright

Posted On: Aug. 21, 2015 12:00 AM CST

Gimme a C! … for copyright

No matter how you toss and tumble the idea of precisely what constitutes a cheerleader uniform, a federal appeals court has decided that it most certainly can be copyrighted.

The Wednesday decision on cheerleader uniform copyrights by the 6th U.S. Circuit Court of Appeals in Cincinnati reverses the ruling by the U.S. District Court in Memphis, Tennessee, in March 2014 that said they can't.

The question of what makes a cheerleading uniform a cheerleading uniform brought Star Athletica L.L.C. a company that markets and sells uniforms for football, baseball, basketball, lacrosse, and cheerleading, to court to defend itself from a copyright lawsuit.

The lawsuit was filed by cheerleader uniform maker Varsity Brand Inc., after seeing Star's marketing materials and noticing that Star was advertising cheerleading uniforms that looked a lot like Varsity's registered designs.

Part of Star's argument was that Varsity's designs are for useful articles, and useful articles cannot be copyrighted. The District Court ruled in Star's favor, stating there is no separation of a cheerleading uniform and its design.

But a three-judge panel of the 6th Circuit entered a split ruling in Varsity's favor, stating that the court believed that the graphic features of Varsity's cheerleading uniform designs are more like fabric design, and therefore copyrightable, than dress design, which is not copyrightable — and so are protected under the U.S. Copyright Act.

In the opinion, Circuit Judge Karen Nelson Moore said Varsity could try to copyright its graphic designs because they were separate from the uniforms' “utilitarian” aspects, where they function to cover the body, draw away moisture, and let cheerleaders do jumps, kicks and flips. Judge Moore wrote, “Indeed, nothing (save perhaps good taste) prevents Varsity from printing or painting its designs, framing them, and hanging the resulting prints on the wall as art.”

In his dissent, Circuit Judge David McKeague wrote that “clothing provides many functions, but a uniform at its core identifies its wearer as a member of a group,” which leads to the conclusion that it is not copyrightable because the design identifies someone as a cheerleader; without the design it would make an appropriate outfit for tennis, but not for a member of the cheerleading squad.

He also pleaded for Congress or the Supreme Court to get involved because “the law in this area is a mess — and it has been for a long time.”