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Designs on Cheerleader Uniforms Can Be Copyrighted

By Judith L. Grubner

When is a graphic design a “work of authorship” that, when incorporated into the design of a useful article, is “identified separately from, and ' capable of existing independently of, the utilitarian aspects of the article”? That issue is at the heart of the Court of Appeals for the Sixth Circuit's decision in Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237, ___ F.3d ___ (6th Cir. 2015). In deciding that the designs on cheerleader uniforms were more like copyrightable fabric designs than unprotectable garment designs, the Sixth Circuit undertook a lengthy analysis of “separability”; that is, when certain features of useful articles are capable of being copyrighted separately from the articles' functional aspects.

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