A clothing manufacturer has asked the Sixth Circuit to stay a court mandate issued against them back in August, where the federal appellate court reversed a district court’s decision that cheerleading uniforms cannot be copyrighted. The case, Varsity Brands, Inc. et al v. Star Athletica, LLC, was initially brought in 2010, seeking to uphold protection granted by the U.S. Copyright Office to Varsity in regards to their specific uniform design, which they believed Star had compromised at the time.
While the district court first ruled in favor of Star, holding that cheerleading uniforms are not copyrightable, as clothing generally has been disfavored protection, the Sixth Circuit reversed that decision, reasoning that the specific design Varsity employed was “conceptually separate enough” to deserve copyright protection because the element of the garment is completely separate from the uniform’s utilitarian aspects, i.e., to clothe the wearer and to allow them an ability to express identity. As well, the court wished to uphold deference granted to the Copyright Office in determining what is or is not protected. Star argues against the appellate court, citing to a long history of rulings against the idea that clothing can be copyrightable and that by overturning the district court’s decision, the Sixth Circuit has created an entirely new separability analysis which causes an even greater split amongst the already divided courts. It is on these authorities, the defendant states, that the Supreme Court will hear the case and overturn the decision.
Under the Federal Rules of Appellate Procedure, Star has 90 days to file a petition for writ of certiorari with the Supreme Court following final judgment, which is why it currently seeks a stay against the Sixth Circuit’s mandate, to give it the requisite time to prepare and file its petition. Star’s motion was filed on October 14, 2015.