Costume Copyright Case Haunts the Supreme Court on Halloween

On Halloween this past Monday, costumes were not only on the minds of trick-or-treaters and partygoers, but also of the eight Supreme Court Justices, who heard a copyright case concerning cheerleader costumes. According to the Wall Street Journal, Varsity Brands Inc., the country’s leading cheerleader uniform maker, is suing smaller manufacturer Star Athletica for copyright infringement of its uniform designs. Under copyright law, designs that affect the garment’s function cannot be copyrighted, while designs that are purely aesthetic can. While this distinction seems intuitive, it is difficult to draw the line in reality. Varsity argues that the stripes and geometric patterns on its uniforms are artistic creations separate from the uniforms’ utility, and Justice Ruth Bader Ginsburg seemed to agree. She noted that the designs are “two-dimensional artworks” that are “not part of the design of the cheerleader’s uniform” because they are “superimposed on it.” However, Star asserts that the stripes and geometric patterns do play a functional role because they signal to people that the wearers of the garments are cheerleaders and also make the cheerleaders appear thinner and taller. Chief Justice John Roberts agreed with Star that “the design on a cheerleading uniform is what makes it a cheerleading uniform, as opposed to a plain dress.”

The Supreme Court’s decision, due in June, could have far-reaching consequences for the fashion and retail industry. Consumer groups and cosplayers, who dress up as comic book and pop culture characters, are worried that a ruling in favor of Varsity would severely hinder consumer creativity and freedom of expression. Justices Stephen Breyer and Sonia Sotomayor also highlighted possible economic consequences: a ruling for Varsity could greatly increase clothing prices and spell an end to the knockoff industry. However, fashion designers support Varsity and want to see more protection against piracy of their artistic works.

Prudence Ng is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2019).