This was a copyright infringement case between Star Athletica and Varsity Brands. The Supreme Court considered whether Varsity Brands’ cheerleader uniforms contained two-dimensional copyrightable works of art that are capable of being infringed by Star Athletica’s cheerleader uniforms.
The Supreme Court held for Varsity Brands and concluded that surface decorations or designs incorporated into a useful article, such as a cheerleader uniform, can be protected by copyright. In evaluating the creative element in the useful article, the decision maker should imagine the surface design apart from the useful article and consider whether it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium, i.e. conceptual separability. This is a big step in creating uniformity in this area of law.
The case was remanded to the district court. The subsequent district court result should be monitored closely. The Supreme Court did not hold that Varsity Brand’s chevron and stripe designs were copyrightable, only that they were eligible for copyright based on conceptual separability. This case will hopefully clarify what plaintiffs can protect under copyright law and provide greater uniformity to future decisions evaluating copyrightability of artistic elements of useful articles.