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Supreme Court Agrees to Referee Cheerleading Copyright Dispute

By Casey C. Sullivan, Esq. on May 12, 2016 1:15 PM

There's a massive showdown coming to the Supreme Court -- over cheerleader uniforms. On one side is Star Athletica, an upstart purveyor of spirited outfits for spirited squads. On the other is Varsity Brands, hometown heroes and long-time reigning champs, at least when it comes to everything cheerleading. Caught in the middle are thousands of peppy high schoolers who just want to waive some pompoms and scream "go team!"

And last Monday, the Supreme Court decided it would play referee in the competition between the two companies, granting cert to a dispute over whether cheerleading uniform designs are entitled to copyright protection. So, cheerleaders, get ready to "bring it on!" On to the Supreme Court, that is.

Gimme a C! Gimme an E! Gimme an R! Gimme a T!

Varsity Brands is, according to Education Week, the undisputed champ of cheerleading. The company reigns over a "empire of pep" that brings in more than $300 million a year from cheerleading uniforms, camps, and competitions. But, according to Star Athletica, Varsity is also a bit of a copyright troll.

Varsity copyrights hundreds of designs for cheerleader uniforms, then sues competitors with similar outfits, shutting them out of the market, Star Athletica alleges. And that's where the upcoming Supreme Court face off comes in.

Cheerleading Uniforms: The Most Vexing Question in Copyright Law

Under federal copyright law, "useful articles," such as cheerleading uniforms, aren't entitled to copyright protection on their own. But, their features may be. The question is one of "conceptual separability:" when can the creative concept or feature (here, the design) be separate and protected from the useful article itself (the uniform)?

This is not just some trivial disagreement about cheerleading outfits, either. The Sixth Circuit, which ruled on the dispute between Varsity and Star Athletica last August, described the question as a "metaphysical quandary" and "the most vexing, unresolved question in copyright law."

When it comes to dealing with conceptual separability, courts are all over the place. The Sixth Circuit, which found that Varsity's designs could be subject to copyright, listed no less than 10 tests courts have used to determine when designs can be separate from the useful article. And then it rejected nine of them.

The Sixth adopted a position rarely taken in intellectual property law: deference to U.S. Copyright Office's determination of copyrightability.

By granting cert, the Supreme Court will now get into the debate, hopefully determining which test is proper when deciding if a feature of a useful article is protectable. Here's hoping they don't get too lost in the metaphysics of cheerleading, or copyright law.

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