Supreme Court Cheers on Copyright Separability

by Dennis Crouch

Star Athletica v. Varsity Brands (Supreme Court 2017)

In a new Copyright decision, the Supreme Court has modified the doctrine of separability that allows for copyright of works of authorship associated with useful articles.

Under the statute:

The design of a useful article … shall be considered a [copyrightable] pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

17 USC 101.  Interpreting that statute, the Court here holds that the statute requires that an ‘artisitc feature’ of a useful article may be copyrighted:

if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.

In walking through this, the court held that two-dimensional surface decorations will not always be separable, but the ‘artwork’ applied to the cheerleader uniforms at issue here did pass the test.

The Star Athletica decision will further blur the line between the intellectual property spheres and savvy IP strategists will continue to layer overlapping IP rights.  A challenging aspect of the decision will be the “work of art” requirement.

Read the Decision: 15-866_0971