“[T]he design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work,” and thus copyrightable, “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
its an area of law fraught with problems (in the UK matters where somewhat clarified by the 'Star Wars' case of Lucasfilms v Ainsworth).
Here in the United States District Court for the Western District of Tennessee at Memphis (No. 2:10-cv-02508) Judge Robert H Cleland concluded that a cheerleading uniform is not protected without the distinctive stripes, chevrons, zigzags, and colorblocks, and therefore the claimant's copyrights were invalid. But the Sixth Circuit majority opinion by Judge Moore disagreed. The appellate court likened uniforms to fabric patterns, which can be protected by copyright:
To the extent that [the defendant] contends that pictorial, graphic, or sculptural features are inextricably intertwined with the utilitarian aspects of a cheerleading uniform because they serve a decorative function… we reject that argument. Such a holding would render nearly all artwork unprotectable. Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs….It would also render the designs on laminate flooring unprotectable because the flooring would be otherwise unattractive….Finally, holding that the decorative function is a “utilitarian aspect of [an] article,” would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well-established that fabric designs are eligible for copyright protection…We therefore conclude that a pictorial, graphic, or sculptural work’s “decorative function” does not render it unable to “be identified separately from,” or “[in]capable of existing independently of, the utilitarian aspects of the article.”
Judge David McKeague dissented saying that the uniforms were not copyrightable - because the design identifies someone as a cheerleader
“clothing provides many functions, but a uniform at its core identifies its wearer as a member of a group”
But adding a plea for Supreme Court guidance, or even reform or new legislation, saying:
"The majority takes a stab at sorting it out, and so do I. But until we get much needed
clarification, courts will continue to struggle and the business world will continue to be
handicapped by the uncertainty of the law."
Varsity Brands, Inc., et al V Star Athletica, LLC. (14-5237)