Intellectual Property Lawsuit Settled for Kilgore & Kilgore Client – Court Grants Summary Judgment in Recent Copyright Litigation Involving Cheerleading Uniforms

The use of copyright laws to eliminate fair market competition has been stymied, at least for now. Parents know the exorbitant cost of replacing cheerleading uniforms. With this decision, hopefully there will be some price relief.

In 2012, Varsity Brands of Tennessee sued Star Athletica of Mississippi, Kilgore & Kilgore’s client. When Star Athletica entered the cheerleading uniform replacement market, Varsity Brands sued for copyright infringement on its cheerleading uniforms. Varsity Brands, founded in 1974, purports to be a driving force in making cheerleading into a worldwide phenomenon. Varsity Brands works with schools to promote cheerleading through training camps, televised competitions, and cheerleading uniforms it designed and manufactured. Varsity Brands probably thought it had a good case with its copyrights in place.

On an issue of first impression for the 6th Circuit, the District Court for Memphis granted a summary judgment in favor of Star Athletica against Varsity Brands on March 1, 2014. In its opinion, the Court held that the colors-and-designs component of a cheerleading uniform cannot be conceptually separated from the utilitarian object itself. Copyright protection, as a matter of law, cannot apply. The matter is currently up on appeal to the 6th Circuit on the issue of whether copyright protection applies to cheerleading uniforms.In Varsity v. Star, Varsity Brands attempted to use copyrighted pictures of cheerleading uniforms as a basis for preventing Star Athletica from offering replacement uniforms.

With this decision, Kilgore & Kilgore and its co-counsels Feldman Law, of New York, and Harris Shelton Hanover Walsh, of Memphis, insert themselves right in the middle of the fray over copyright protection for garments.

Over the years, major fashion houses have attempted to protect their designs from imitators. In July 2011, The House of Congress introduced H.R. 2511 the Innovative Design Protection and Piracy Act (IDPPPA), dubbed the “Fashion Bill.” It was intended to extend copyright protection for three years to fashion designs that “are (i) the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.

Legislation attempting to protect fashion designs has been around since at least 2006, when H.R. 5055 was introduced. The IDPPPA, if passed, would have amended the Copyright Act to create special protection for fashion designs, but not full-on-all-the-way copyright protection. Instead, the IDPPPA provided for a three-year term of protection for original elements or arrangements of fashion designs. Those elements were supposed to be about  real innovation, like the chain inside the hem of a Chanel suit jacket that ensure it hangs properly from the shoulders, the Diane Von Furstenberg wrap dress invented in the 1970s that has been copied by millions, or the iconic Burberry trench coat. Small competitors objected to the cost of litigation associated with such a bill, which died in Committee.

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