The United States Court of Appeals for the Sixth Circuit recently ruled that designs on cheerleading uniforms are eligible for copyright protection. Varsity Brands, Inc. involved a dispute between two cheerleading apparel and accessory companies regarding whether graphic designs that appear on cheerleading uniforms and warm-ups are subject to copyright protection. The Plaintiff alleged that the Defendant sold cheerleading uniforms that were substantially similar to the cheerleading uniforms sold by the Plaintiff and sued for copyright infringement, among other claims. The Defendant argued that the copyright registrations relied upon by Plaintiff were invalid because the subject designs could not be physically or conceptually separable from the functionality of the uniforms.
Copyright protection can exist for “pictorial, graphic, and sculptural works” (“PGS works”). PGS works “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” Generally, copyright protection will not inure to something that merely serves a functional purpose.
The Varsity Brands, Inc. court primarily focused on what is known as a separability analysis. The Sixth Circuit identified that the graphic features of the designs subject to the Plaintiff’s copyright registrations are “stripes, chevrons, zigzags, and color-blocking.” Thus, the Sixth Circuit had to determine whether the subject designs are physically and conceptually separable from the functional aspects of the uniforms to which the designs are affixed. For example, an ornament on the hood of a car may be subject to copyright protection because you can take the ornament off of the car and the car would still be able to operate, thus, the ornament is a design that can be physically separable from the functional aspects of the car.
The separability analysis is largely unsettled in the case law as several courts have taken different approaches and proposed different tests to be applied. The Sixth Circuit attempted to formulate its own test by applying a five (5) question test, which focuses on determining the work’s function and whether the claimed copyrightable elements can be separable or exist independently of that function. In applying this test to the Plaintiff’s designs the Sixth Circuit found that such designs could be subject to copyright protection. The Sixth Circuit noted that the functional aspects of a cheerleading uniform are to “cover the body, wick away moisture, and withstand the rigors of athletic movements,” such as by allowing the wearer to “cheer, jump, kick, and flip.” The Sixth Circuit rejected the Defendant’s argument that the graphic features embodied in Plaintiff’s registrations were not separable from the functional aspects of the cheerleading uniform because they serve a decorative function, noting that “[s]uch a holding would render nearly all artwork unprotectable.” The Sixth Circuit also reversed the District Court’s finding that the arrangement of stripes, chevron, zigzags and color-blocking were not separable from the cheerleading uniform, noting that all of the Plaintiff’s designs are interchangeable and do not enhance the uniform’s function to cover the wearer’s body.
The determination of whether a PGS work can be subject to copyright registration can be a complicated task. The Sixth Circuit’s approach seems reasonable but it will be interesting to see whether other Circuits adopt the approach and whether holes in the approach will be developed by future case law. Please contact our office if you have any questions regarding the information in this article.
Daniel Devine, Esq.
Santucci Priore, P.L.
 See, Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237, 2015 WL 4934282 (6th Cir. Aug. 19, 2015).
 Id. at 2015 WL 4934282 *1.
 Id. at 2015 WL 4934282 *2.
 See, 17 U.S.C. § 102(a)(5)
 See, 17 U.S.C. § 101.
 Varsity Brands, Inc., 2015 WL 4934282*8-14.
 Id. at 2015 WL 4934282 *17.
 Id. at 2015 WL 4934282 *8-14.
 Id. at 2015 WL 4934282 *14-16.
 Id. at 2015 WL 4934282 *18-19.
 Id. at 2015 WL 4934282 *16.
 Id. at 2015 WL 4934282 at *17.