Copyrights abound, with seemingly no barrier.

Last week, the Supreme Court announced its decision in Star Athletica v. Varsity Brands, a case that involved the design of cheerleader outfits, and whether or not such a design could be copyrighted.

Varsity Brands has more than 200 copyright registrations for cheerleader outfit designs. Of those, and relevant here, are designs that include “lines, chevrons, and colorful shapes.” The question before the court was what, if any, protection could be extended to Varsity regarding those two-dimensional copyrights and there application to a three-dimensional cheerleading outfit. This specifically involves how copyrights apply to useful articles, design aspects of those articles, and, what is known as, the separability test.

(These are a couple of the registrations listed in the Court’s opinion)

Copyright does not protect useful articles. That is reserved for patent law. Essentially, in the case here, the cheerleading outfit itself, not including its design, is merely utilitarian. The clothes are used just as any other clothes, and maybe here there is even more utility in the cut, fabric, etc. as compared to other clothing. Either way, the clothing itself is useful, and therefore not copyrightable. But, the design of the clothes—the stripes, chevrons, etc.—may be protectable. That is, if that design, when separated from the article (this is a theoretical question, not literally separated), can stand alone as a copyrightable design.

Separability can apply to any object of utility. For instance, a chair, lamp, car, or any object that has a usefulness—and aesthetic are not considered useful in this determination.

As eluded to above, the separability standard says that copyright protection will be afforded to a design that “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of [an] article.”

The Court used this standard, announced it is the standard, and then decided that the cheerleading outfits here were protected by copyright. That is, the “lines, chevrons, and colorful shapes” of the cheerleading outfits can be separated, and exist independent of the outfit itself. And when separated, the design is capable of copyright protection on its own.

This opinion was written by Thomas, a textualist, so its not surprising that it attempts to stick close to the text of the statute, and go no farther than that. But I can’t see how these outfits align with the purpose of the statute—which, of course, Thomas couldn’t care less about. The reason for protecting designs on useful articles is to protect “applied art,” as opposed to “industrial design.”

Justice Breyer, in his dissent, attempted to demonstrate when a useful article incorporates a separate copyrightable design by describing a lamp with a cat statue. The lamp incorporates a porcelain cat figure, which could be wholly separated from the lamp, exist on its own as a work of art, and be copyrighted. So, if the cat is a part of the lamp, the cat itself is still protectable, even if the lamp is not. 

cat lamp

(Breyer’s cat lamps from his dissent)

That is an example of applying art to a utilitarian object. That is not what the Court had here. Here, the Court was dealing with typical cheerleading outfits that incorporate designs relevant, and, in my opinion, useful to cheerleading. The designs have a purpose, a function, and, can’t be separated from the article. This is not art applied to a useful object. This is not a cat lamp.

The real question is, now that the Court has allowed protection of such articles, how aggressive are Varsity and other similarly situated companies going to be in protecting their designs, and what scope of protection will such articles be afforded?