On Halloween, US top court ponders costumes

In a happy coincidence of the US judicial calendar, the Supreme Court on Halloween Monday is set to solemnly take up the subject of costumes and outfits.

The eight justices have been asked to define copyright limits in a usual case that poses the question: Can the design of a cheerleader’s outfit be protected by rights of authorship?

The dispute is more substantive than it appears, pitting Star Athletica against Varsity Brands, both manufacturers of clothing for young athletes, or in this case cheerleaders.

A beloved feature of the US sporting scene, cheerleaders have been exciting fans at American football, baseball and other games for more than 120 years. Varsity, the market leader, accuses its smaller rival Star Athletica of copying certain of its cheerleader costumes.

According to federal law, a design can be protected by copyright if it can be distinguished as separate from the article’s function. In this case, Varsity insists that the chevron pattern on the tops and skirts of its cheerleading outfits is a conceptual creation separate from the uniform’s function. Star Athletica maintains the opposite.

The court’s challenge will be to draw the line between the aesthetic and utilitarian, creating a framework for deciding whether a copyright for design is valid.

The decision could have broad repercussions with significant economic consequences. The dispute is particularly concerning to devotees of “cosplay,” who dress up in costumes that borrow from characters in Japanese manga comics, video games and other spheres.