What makes a cheerleading uniform a cheerleading uniform?  The appellate attorneys at Warner Norcross & Judd LLP are asking the 6th Circuit U.S. Court of Appeals to take a closer look at the issue.

John J. Bursch and Matthew T. Nelson, partners with Warner Norcross filed a request for an en banc hearing yesterday in the copyright case of Varsity Brands et al v. Star Athletica over the colorblocks, stripes and zigzags that set cheer uniforms apart.  In August, three judges of the 6th Circuit overturned a district court ruling granting summary judgment to Star, which defended a copyright infringement suit by arguing that Varsity couldn’t copyright the designs for its uniforms.  The decision was split 2-1.

In representing Star Athletica, Bursch and Nelson are asking for all 15 judges of the 6th Circuit to hear the case and issue a verdict that would “give this area the Court’s stamp of authenticity,” according to Bursch.

Key issues to be considered in the case include:
The level of deference due to the U.S. Copyright Office, which initially afforded protections to the Varsity designs.
Whether the designs can be protected under current copyright law, which looks at the definition of “useful” articles to determine if the elements in question were decorative, identifying or functional

“As Judge McKeague mentioned in his dissent, this area of the law is jumbled,” Nelson said.  “We are asking the full panel of judges at the 6th Circuit to clarify the issue of copyright at stake here and issue a definitive decision.”

By John J. BurschMatthew T. Nelson of Warner Norcross & Judd