Ever watch the actors strut along the red carpet at a star-studded event like the Academy Awards? Little may you know that the celebrity women’s dresses are all available for purchase online later that same evening—for a fraction of the cost.

Stripping the dresses from the actors backstage? Not exactly. This sort of imitative sale can happen because copyright law does not protect clothing designs. Odd, isn’t it? Copyright law protects all sorts of weird things that do not seem creative, but something as distinctive as the design of a celebrity’s Academy Awards dress does not.

But that may change (forgive the pun).

Last summer, a split U.S. Court of Appeals for the Sixth Circuit panel ruled in Varsity Brands Inc. et al. v. Star Athletica LLC that decorative designs used on cheerleading uniforms can be copyrighted (Case No. 14-5237). The panel, reviving the plaintiff’s infringement lawsuit over uniforms produced by rival Star Athletica, ruled 2-1 that the stripes, chevrons, and other graphic elements on uniforms sold by Varsity Brands, one of the world's largest producers of cheerleader gear, were eligible for copyright protection.

In the past, clothing has been considered a functional, useful item that was not eligible for copyright. That was how the lower court ruled last year: it held that Varsity's stripes and chevrons were inseparable from the company's otherwise unprotectable apparel. Without stripes or chevrons, the lower court said, these outfits would not be considered cheerleading uniforms.

The Sixth Circuit disagreed. It held that designs featured on Varsity's uniforms were conceptually separable from the clothing itself and therefore entitled to copyright protection. The Court felt that the graphic features of Varsity’s designs were capable of being identified separately from and existing independently of the utilitarian aspects of its cheerleading uniforms. And it felt comfortable holding that Varsity’s graphic designs were copyrightable subject matter.

You might think that was going far enough, but the Sixth Circuit went further. Click here to continue reading the article on Inside Counsel.

Reprinted with permission from the March 21, 2016 edition of Inside Counsel© 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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