The patterns of the cheerleading uniforms - including stripes, zig zags, stars and more - can be protected by copyright. The shape, color and other aspects of the uniform cannot.
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Lawsuit leads to copyright law protecting athleisure wear

The patterns of the cheerleading uniforms - including stripes, zig zags, stars and more - can be protected by copyright. The shape, color and other aspects of the uniform cannot. (Photo by Erik Isakson via Getty Images)

Probably seen more places outside of the gym than in, athleisure wear has become the new model for comfortable clothing. However, what separates athleisure wear styles? Do buyers make choices based on the brand or the aesthetic?

Consider: You’re standing in front of two pairs of yoga pants. Both feature a pattern of zig zags along the leg. Did one of the brands copy the other or is a pattern like a zig zag available to be used by anyone? A recent lawsuit answers the question after Varsity Brands sued Star Athletica on the basis of copyright infringement for stealing their designs.

What is a copyright?

Copyright, trademark and patent are terms easily mixed up. A copyright gives the legal right to a person or business to publish their creative work or design while protecting their work from being published by others. A trademark is limited to something less tangible a word, phrase, symbol or design. A trademark doesn’t expire. A patent is typically applied to inventions and don’t last for more than 20 years.

Varsity Brands’ suit against Star Athletica focused on copyright law. When it comes to athleisure wear, current copyright law rests on three primary points.

First, the subject receiving the copyright must be in the form of a tangible medium literary, dramatic, musical, artistic and the like. If the subject is something like a phrase, then it would be eligible for a trademark.

Second, the brand has to establish a secondary meaning or acquired distinctiveness a purpose. When the design is not functional, it can establish a trademark protection.

Third, the design has to be original, but it doesn’t have to be “novel.” This explains why copyrights are easier to obtain than patents, which require both originality and novelty.

Copyright law comes with a number of benefits for the athleisure industry. It is less expensive and has quicker registration compared to trademarks and patents. Unlike patents or trademarks, a copyright lasts 95 years. As long as the product is properly registered, replications of the work can be seized when pirated versions are discovered.

There is a catch, however. If the creative piece is found to be a useful article (does it serve a necessary purpose), then it can’t be protected by copyright. For example, shoes provide a purpose of protecting feet in addition to their design. This is why non-brand shoes can copy the design of Converse, but they aren’t allowed to put the recognizable logo on the shoes because of trademark laws.

How it began

One of the first cases to deal with the issue is Mazer v. Stein (1954). The case was about a table lamp with a base that was the shape of a Balinese dancer. The maker of the vase wanted it to be protected by copyright, but the court had to ask if the base could be protected or was it a useful article. The court concluded that since the creative base could be separated from the lamp it was eligible for protection. That set the precedent that creative pieces that could be separated from useful articles were able to be protected by copyright. Even with that clarification, details were argued for decades.

Kieselstein-Cord v. Accessories by Pearl, Inc. (1980) involved the issue of aesthetic elements of a useful article that couldn’t be physically separated. The case brought up a belt buckle’s artistic design that could be conceptually but not physically separated. The court granted copyright protection, but not without criticism. Making the issue more confusing, a different court didn’t grant copyright protection to a stylized bike rack in Brandir Int’l, Inc. v. Cascade Pacific Lumber Co. (1987) because it ruled the design was influenced by its function.

Breaking apart Star Athletica v. Varsity Brands

In the most recent court case, Star Athletica v. Varsity Brands (2016), the copyright fight was between two manufacturers of cheerleading uniforms, as SportTechie explained. Varsity Brands sued Star Athletica for copyright infringements in regard to the more than 200 copyright designs it owned. Star Athletica argued the items in question did not have valid copyrights.

The 2016 case was the first time the Supreme Court introduced the two-part test to determine when the aesthetics of a useful article are eligible for copyright protection, as was the issue with Varsity Brands’ uniforms. The test dictates an article is eligible if the aesthetic feature can be perceived as a two- or three-dimensional work of art separate from the article. The feature would also have to qualify as a piece of art on its own or fixed in some medium of expression if it could be imagined as separate from the article.

The court held that the designs on the uniforms created by Varsity Brands were not integral to the functionality of the uniform, so they were protected by the copyright law even though the design couldn’t be separated from the article. The designs were able to be separated from the clothing to become its own piece of art without ruining the functionality of the article.

Why you should care

The decision may open the door to other industries that have been excluded from being granted copyright protection for original work expressed on a tangible article. Following this ruling, Puma filed suit against Forever 21 for selling knockoffs of one of its shoe designs.

Why may the ruling apply to athleisure wear? Because the clothing serves a hard-to-define purpose, its eligibility for copyright protection is murky. However, it’s a safe bet that an increasing number of athleisure wear vendors are going to be applying for copyrights. It’s the safest option to protect their brand, and it’ll allow for more clear-cut enforcement and legal action because such actions will focus on the design elements rather than the products.

It has been a slow journey to develop a consistent solution to the problem. As time passes, the athleisure battle in Star Athletica v. Varsity Brands may prove the answer everyone was searching for.

Nikole Tower is a senior journalism student at Arizona State University.