Supreme Court allows copyright protection of cheerleading uniforms

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Justice Ruth Bader Ginsburg concurred in the result, pointing out that the Court did not have to discuss the separability test at all because the designs at issue were not themselves useful articles, but rather standalone, two-dimensional pictorial and graphic works reproduced on a useful article. And that can be copyrighted. The U.S. District Court for the Western District of Tennessee had concluded that the respondent's designs did not qualify for copyright protection because they served the function of identifying the garments as cheerleading uniforms, and thus the designs were impossible to separate from the utilitarian function of the uniform. The Court also reasoned that removing the surface decorations from the uniforms in the abstract and applying them in another medium would not replicate the uniform itself. The design is inseparable from the utility, in other words.

The Supreme Court ruled 6-2 in favor of Varsity Brands and said designs are protected if they're a 2-D or 3-D work of art that can exist outside of a functional object. Accordingly, the decorations were found separable from the uniforms and eligible for copyright protection.

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Susan Scafidi, a professor at Fordham University and founder of the Fashion Law Institute, provided expert advice in the trial when the case was still at the District Court level and says this should not have been an "enormous, Supreme Court-worthy case garnering worldwide attention". Third, the Court disagreed with the petitioner that Congress' refusal to include a statutory provision permitting limited protection of industrial designs had any relevance or persuasive value. "Copying is rampant and protection is limited", says Scafidi, "so the industry needs to hold onto the little protection it does have to prevent design piracy".

After losing a 2010 lawsuit, Varsity Brands eventually got a favorable ruling Wednesday as the highest court of appeal said the designs were protected.