This entry is a follow up to a previous blog article regarding the case of Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015), in which the Sixth Circuit Court of Appeals ruled that designs on cheerleading uniforms are eligible for copyright protection, namely stripes, chevrons, and color blocks incorporated into a uniform. Star Athletica, LLC then filed a petition for a writ of certiorari to the Supreme Court, which recently agreed to hear the case. The Supreme Court agreed to hear only one issue from Star Athletica, LLC’s petition, namely the question: What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?
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 utilitarian purpose, such as a chair. This dispute resolves around how to separate copyrightable designs from utilitarian objects that are not subject to copyright protection, within a cheerleading uniform. Star Athletica, LLC claims in its petition that this case will resolve important issues in the fashion industry and warns that if the Sixth Circuit’s decision is not overturned then “industrial designers can claim copyright protections . . . for pleats on tennis skirts, button patterns on golf shirts, and colored patches on rugby uniforms.”
The Supreme Court’s decision is also likely to be significant in that it has the potential to provide a clear test for determining the extent of copyright protection in PGS Works. As stated in more detail in our previous blog entry, the case law is unsettled regarding the proper test to determine whether creative designs are separate from utilitarian functions. The Supreme Court’s decision can also have significant impact on the 3D printing industry. A clear test would provide clarity on the extent to which certain 3D printed objects that combine creative designs and utilitarian functions are subject to copyright protection. An Amicus Brief filed by 3D printing companies warns that “[t]he current state of the law increases barriers to entry for market participants who stand to take greatest advantages of 3D printing. . . . [and that] [t]he confusion surrounding the conceptual separability doctrine will likely lead to elevated levels of litigation.” Although a decision by the Supreme Court is not likely for several months, when it is entered, it is likely to have significant impact on the scope of copyright protection, especially in the fashion industry.
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Daniel Devine, Esq.
Santucci Priore, P.L.
 This blog was entitled “Sixth Circuit finds that designs on Cheerleader Uniforms can by copyrighted.”
 See, Star Athletica, LLC v. Varsity Brands, Inc., 2016 WL 98761 (May 2, 2016).
 See, 17 U.S.C. § 102(a)(5)
 See, 17 U.S.C. § 101.
 See, http://www.scotusblog.com/wp-content/uploads/2016/05/SACP.pdf, at pg. 6.
 See, http://www.scotusblog.com/wp-content/uploads/2016/03/Star-Athletica-v-Varsity-Brands-Amicus-of-Shapeways-FILED.pdf, at pg. 2-5.
 Id. at pg. 4.