It’s been a while since cheerleading took center stage in the cultural zeitgeist—the early ’00s were a peak of sorts for our fascination with the sport-meets-dance teams, driven by the success of Bring It On and reality television shows like Cheerleader Nation. But thanks to an ongoing case regarding cheerleading uniforms that the Supreme Court is taking on this coming October, spirit fingers are shaking their way back into the spotlight.
And not just any spotlight—no. It’s the fashion industry who will be paying very close attention to this case, as it could have significant implications for the oft-contested copyright laws that high-fashion designers and fast-fashion brands are constantly navigating.
Let’s break it down. A few years ago, Varsity Brands, the world’s largest manufacturer of cheerleading uniforms, sued its competitor Star Athletica for supposedly reproducing its copyrighted designs. While this might seem like an easy case to weigh in on, the complex copyright laws in this country make it much more of a challenge. See, anything considered “useful” (a uniform, an appliance, etc.) can’t be copyrighted, while any designs (patterns, embellishments, etc.) on top of that useful item can be. This makes copyrighting a clothing item, which merges function with design, particularly tricky.
As Fortune points out, “with $330 billion in annual sales among apparel, footwear and accessories, any change in what’s copyrightable could have widespread implications.” To find out more about those potential effects, we spoke to our favorite legal expert, Julie Zerbo of The Fashion Law.
Keep reading to see what she had to say.
WHO WHAT WEAR: What are some of the biggest implications of this case for the fashion industry? Who might benefit, and who could be harmed?
JULIE ZERBO: The key issue in the case is whether a design element (e.g., a shirt pattern or the cut of a dress) can be conceptually separated from the ‘useful’ article of clothing, and thus protected by copyright law. One of the problems is that there are many different ways of testing whether a design element is conceptually separable, so the Supreme Court will sound off on these possible tests and ideally set forth one for gauging separability.
The lower court held that the chevron, zigzag, and stripe designs on the cheerleading uniforms at issue could be copyrighted because they are separable. But the court also held that the cut of a uniform couldn’t be copyrighted because it isn’t conceptually separable from the garment’s function. This is really just a modest win for designers. If adopted by the Supreme Court, the ruling would allow designers to prevent some patterns of stripes and other designs from being copied, but copyists can (and certainly will) still reproduce the cut of a garment, as that would still be considered useful. So Cushnie et Ochs or Anthony Vaccarello, for example—the cuts of whose dresses and skirts are commonly copied—will still have little legal recourse in the U.S. as a result.
As for who will benefit most directly, it will be judges and those in the legal field. Courts have struggled to set guidelines for how to distinguish the useful qualities of a work from its expressive features, and so a ruling from the Supreme Court will clarify this vexing, unresolved issue. Clarity and maybe even a bright line rule will prove beneficial for everyone, though. Designers will ideally be free to an extent of uncertainty in regard to what rights they have and copyists may be deterred as a result of what will hopefully be uniform application of the law (or as uniform as possible) in this area.
WWW: Historically, has it been easier for sports or sports-adjacent uniforms to receive copyright protection?
JZ: To date, we have seen more issues with sports uniforms in connection with trademark law than copyright, largely because most uniforms revolve heavily around a team, which is a brand, at the end of the day, and so as franchises they’ve relied heavily on trademark law to protect themselves. It is relatively rare that anyone is concerned with the copying of the “design” of a football jersey, for instance. Team owners tend to be far more concerned with the unauthorized use of the team name or logo. So this is where we have seen the most activity. This is not to say that team logos do not enjoy both trademark and copyright protection and that there aren’t copyright infringement issues when the logo is copied, but that’s another matter entirely.”
WWW: Given how the Supreme Court has handled similar cases in the last few years, what is the likelihood that this case will work out in the fashion industry's best interest?
JZ: It’s difficult to say. Part of the reason this case is so noteworthy is because there is so much uncertainty in this area. If there was Supreme Court precedent clarifying the separability issue, this case wouldn’t be heard. As you may know, the Supreme Court must decide to take a case (aka grant certiorari). It is not obligated to do so. So they tend to only grant the petitions of cases that are exceptionally unique and that present an issue of law that would be considered far-reaching. As a result, there isn’t necessarily much to go on in terms of similar cases. But we can say with certainty that, to date, the Supreme Court hasn’t ever addressed the questions of whether and when the creative concept of a fashion design could be deemed “separable” from the usefulness of the piece of apparel.
How do you think the Supreme Court should rule on this case? Sound off in the comments!