## Facts

- Varsity Brands, Inc. manufactured and sold cheerleading uniforms that featured two-dimensional surface designs, including chevrons, stripes, and colored geometric shapes.
- Varsity obtained more than 200 copyright registrations covering those two-dimensional designs.
- Star Athletica, LLC sold cheerleading uniforms with designs that resembled five of Varsity’s registered designs.
- Varsity sued Star for copyright infringement, alleging Star copied protectable “pictorial, graphic, or sculptural” (PGS) works that were applied to a “useful article” (the uniforms).
- Star sought summary judgment, arguing that features of a useful article are not copyrightable unless separable from the article’s utilitarian aspects.
- The district court granted summary judgment for Star, concluding the uniform would not be recognizable as a cheerleading uniform without the kinds of surface designs at issue and, therefore, the designs were inseparable from the uniform’s function; it treated Varsity’s copyrights as invalid.
- The Sixth Circuit reversed, reasoning that the uniforms would be functionally the same without the designs and that the designs were separable from the utilitarian aspects of the garments.
- The Supreme Court granted certiorari to resolve the standard for determining when a design feature of a useful article qualifies for copyright protection.

## Issues

1. What test governs whether a feature incorporated into a useful article is eligible for copyright protection under 17 U.S.C. § 101’s separability requirement?
2. Are the two-dimensional surface designs on cheerleading uniforms protectable because they can be identified separately from, and can exist independently of, the uniforms’ utilitarian aspects?

## Decision

- The Supreme Court affirmed the Sixth Circuit in a 6–2 opinion by Justice Thomas.
- The Court held that a feature incorporated into the design of a useful article is eligible for copyright protection only if:
  - it can be perceived as a two- or three-dimensional work of art separate from the useful article; and
  - it would qualify as a protectable PGS work (either on its own or fixed in another medium) if imagined separately from the useful article.
- Applying that test, the Court concluded Varsity’s arrangements of colors, lines, chevrons, and shapes on the uniform surfaces met both requirements and were copyrightable.
- The Court explained that recognizing copyright in the surface designs does not grant protection in the uniforms’ shape, cut, or dimensions; it protects only the separable two-dimensional artwork.
- Justice Ginsburg concurred in the judgment, reasoning that the designs were copyrightable as two-dimensional graphic works without needing a separability analysis.
- Justice Breyer, joined by Justice Kennedy, dissented, arguing that the claimed designs, when separated, still depict a cheerleading uniform and therefore do not exist independently as artworks in the way the statute requires.

## Legal Principles

- Under 17 U.S.C. § 101, PGS features of a useful article are copyrightable only if they (1) can be perceived separately from the useful article and (2) would qualify as protectable PGS works if imagined apart from the article.
- The separability inquiry focuses on the artistic feature claimed, not on whether the useful article remains marketable or recognizable after the feature is removed.
- Copyright protection for separable features does not extend to the useful article itself or to its functional or utilitarian aspects (such as a garment’s overall shape and construction).
- The statutory analysis does not require additional judge-made categories beyond the two-part inquiry drawn from the statute’s definition of PGS works and “useful article.”

## Conclusion

Varsity Brands held that surface design features applied to useful articles may receive copyright protection when they can be perceived as separate art and would qualify as protectable PGS works if imagined apart from the useful article; applying that rule, the Court found Varsity’s cheerleading-uniform surface graphics copyrightable while leaving the uniforms’ functional design unprotected.


Varsity Brands, Inc. v. Star Athletica, LLC, 580 U.S. 405, 137 S.Ct. 1002, 197 L.Ed.2d 354 (2017)