In a 6–2 decision authored by Justice Thomas, the Supreme
Court of the United States provided guidance as to whether
aesthetic designs of a cheerleading uniform, such as stripes,
chevrons, zigzags and color blocks, are eligible for copyright
protection. In doing so, the Supreme Court affirmed the decision of
the US Court of Appeals for the Sixth Circuit that aesthetic
designs of a cheerleading uniform are "separable" from
the purpose of the uniform. Star Athletica, L.L.C. v. Varsity
Brands, Inc., Case No. 15-866 (Supr. Ct., Mar. 22, 2017)
(Thomas, Justice) (Ginsburg, Justice, concurring) (Breyer, Justice,
joined by Kennedy, Justice, dissenting).
Background
Under the Copyright Act of 1976, the design of "useful
articles" (i.e., articles having "an intrinsic
utilitarian function that is not merely to portray the appearance
of the article or to convey information") is copyrightable
"only if, and only to the extent that, such design
incorporates . . . graphic . . .
