On September 30, 2015, we posted about a recent case that addressed whether decorative aspects of cheerleader uniforms could be the subject of copyright protection.  Our September 30 post can be found here: https://affinitylaw.wordpress.com/2015/09/30/three-cheers-for-the-wood-flooring-recent-cases-confirm-copyright-protection-for-cheerleader-uniforms-and-wood-flooring-pattern/

The United States Supreme Court recently decided to review the case.  More information can be found in this recent article in The Hollywood Reporter: http://www.hollywoodreporter.com/thr-esq/supreme-court-hear-fight-cheerleader-889321

As the article notes, while the case nominally is about cheerleader uniforms, the Supreme Court’s decision could have far-reaching implications  for Hollywood and could set  boundaries on the copyright protection afforded to costumes.  Stay tuned to this space for updates.

Two recent cases show that the bar to obtain copyright protection is very low, and that designs on a variety of media can qualify for copyright protection if the design is not functional and demonstrates a minimal level of creativity:

Varsity Brands v. Star Athletica:  The issue in the Varsity Brands case was whether the decorative designs on cheerleading uniforms were eligible for copyright protection.  By way of background, the Copyright Act does not provide copyright protection for the functional aspects of clothing but it is possible to obtain copyright protection for purely decorative features of clothing.  Where to draw the line between these two bedrock principles of copyright law in the fashion design context has perplexed many courts over the years.

In the Varsity Brands case, the Sixth Circuit Court of Appeals held that the decorative elements of a cheerleading uniform (such as chevrons, stripes, etc.) could be “identified separately from, and are capable of existing independently of, the utilitarian aspects of [the] uniforms” and consequently that the graphic designs on cheerleading uniforms are copyrightable subject matter if sufficiently creative.  The court’s holding in such regard is an application of the copyright doctrine known as the “separability” doctrine.

In so holding, the Sixth Circuit was careful to distinguish between fabric design and dress design.  Fabric design covers designs printed on a finished garment and have been treated by the courts as features that are not functional and therefore are subject to copyright protection.  Dress design graphically sets forth the shape, style, cut and dimensions for converting fabric into a finished garment and has been held to be functional and thus not capable of copyright protection.

Home Legend LLC v. Mannington Mills, Inc.:  The issue in the Home Legend case was whether a two-dimensional laminate flooring design qualified for copyright protection.  By way of background, laminate flooring consists of three functional layers.  Laminate flooring manufacturers then add a decorative layer called “décor paper” which places two-dimensional artwork on top of the laminate flooring.

The decorative layer at issue in the Home Legend case was a layer that simulated the distressed look of a maple floor after years of wear and tear.  The Eleventh Circuit Court of Appeals held that the design was separable from the flooring itself (another application of the separability doctrine) and displayed a sufficiently minimum level of creativity to “hurdle the low bar of copyright originality.”