Who Owns Cheerleader Uniform Designs? It’s up to the Supreme Court

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The Supreme Court will spend part of Halloween hearing arguments about fashion, in a case that aims to determine whether anyone can own the stripes on cheerleader uniforms.

The case, Star Athletica v. Varsity Brands, No. 15-866, is about whether Varsity Brands, the undisputed giant of the cheerleading apparel and competition industries, should keep its copyrights on certain decorations — chevrons, zigzags and stripes — that appear on some of its outfits.

To qualify for copyright protection, images must be able to stand alone as “pictorial, graphic or sculptural works,” federal law says. Star Athletica, a small, 6-year-old apparel company, contends that Varsity’s decorations do not qualify.

The disputed designs have no meaning on their own, but identify an outfit as a cheerleader uniform, Star Athletica says. Without the decorations, a uniform “looks exactly like the ubiquitous little black dress,” Star said in its brief.

Varsity’s court documents argue that cheerleader uniforms can indeed be plain and that its decorative elements are graphic designs separate from the uniforms.

“We believe that designers everywhere deserve protection under the law for their investment of time, energy and capital in original artwork,” Jon Morgan, a spokesman for Varsity, said in a statement.

Varsity, which was valued at more than $1 billion in 2014 and is estimated to outfit well more than half the cheerleaders in the United States, sued Star in 2010, saying it had intentionally copied several Varsity designs.

Although Varsity’s direct competitors tend to side with Star, the lawsuit has support from the fashion industry, which has very limited copyright protections. Currently, the style or cut of a garment is not eligible, but a pattern on it, such as the impression of a Mondrian painting on a renowned Yves Saint Laurent dress, can be protected.

The Council of Fashion Designers of America, whose members include more than 500 clothing and accessory manufacturers like Ralph Lauren and Michael Kors, filed an amicus brief arguing that finding in favor of Star would further deteriorate the already limited protection available to fashion designers, and would leave them “defenseless against copyists.”

Star was founded in January of the year the suit was filed by the family that owns R. J. Liebe Athletic Lettering Company. Liebe, a nearly century-old company, invented the style of high gloss letters and numbers still used on most sports uniforms.

Varsity’s court filings said that Star was created, with the help of former Varsity employees who had extensive knowledge of Varsity’s designs, in retaliation for the termination of a supply agreement between Varsity and R. J. Liebe.

Steven Crosby, a lawyer for Star, said the Liebe company had been a supplier of Varsity’s in the past, but he otherwise denied Varsity’s claims. There was “nothing inappropriate” about Star’s employment of former Varsity employees, he said.

Varsity has filed multiple lawsuits against competitors, claiming copyright violations. Its competitors say that Varsity claims protection for items that are ubiquitous and too generic to merit copyrights.

“Varsity is saying that a very basic, simple sideline uniform with a chevron in the front” is capable of being copyrighted, said Karen Noseff Aldridge, the founder of the cheerleader uniform maker Rebel Athletic. “And that’s ridiculous.”

Her company, known for its customized outfits with a high ratio of crystals, has also received legal threats from Varsity. Ms. Noseff Aldridge said she was “actively ignoring” a cease-and-desist letter Varsity sent to her after a young customer, who was hired to promote Rebel Athletic apparel, posted photos to the company’s Snapchat account that showed herself in a group photo with other girls wearing Varsity uniforms.

“Varsity takes its intellectual rights seriously and will not hesitate to enforce those rights against parties which misappropriate them,” the letter from Varsity said.

But because most cheerleader uniforms look quite similar, companies can easily run afoul of another’s copyright, said Deborah Sirias, an intellectual property lawyer in Los Angeles.

In 2009, Ms. Sirias defended a small Georgia company in a lawsuit brought by Varsity over some of the same designs at issue in the Supreme Court case. That case was settled out of court, but Ms. Sirias said her client still insisted that she had not borrowed Varsity designs.

“I would highly doubt that there’s anyone else in the industry that would be hoping Varsity would win this case,” said Dave Dreiling, the founder of GTM Sportswear, which makes uniforms and warm-up suits for activities including cheerleading, volleyball and cross-country.

Mr. Dreiling, cheerleading coaches and industry consultants said that there was room for cheerleader apparel makers other than Varsity, and that the industry was getting more competitive.

The cheerleading industry will carefully watch how the Supreme Court responds to the arguments, knowing that an eventual ruling could open up design options and protect them from litigation.

It does not, however, expect the case to knock Varsity off the top of the pyramid. “If they rule against Varsity on this, will that break Varsity?” Mr. Dreiling said. “Not at all.”

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