Some eminent U.S. Supreme Court watchers have speculated that the court’s temporary 4-4 ideological stalemate in 2016 led it to avoid taking cases involving hot-button issues and instead to fill its calendar with relatively uncontroversial disputes, particularly in the area of intellectual property. See Adam Liptak, “The Right-Wing Supreme Court That Wasn’t,” New York Times, June 28, 2016. One case that arguably lends credence to this theory is Star Athletica v. Varsity Brands, Slip op., No. 15-866 (2017), as to which the court recently affirmed a ruling from the Sixth Circuit on March 22, 2017. Star Athletica raised no contentious political issues, to put it mildly: The case concerned the copyrightability of simple two-dimensional graphic designs that are printed on, or woven into, the fabric of cheerleading uniforms. The case did, however, give the court an opportunity to standardize an uncommonly chaotic body of case law surrounding the application of copyright law’s “conceptual separability doctrine” to useful articles, including garments. The court’s grant of certiorari framed the issue as follows: “What is the appropriate test to determine when a feature of a useful article is protectable under §101 of the Copyright Act?”
Under settled copyright principles, the cheerleader uniforms in Star Athletica certainly qualify as useful articles, but the issue was how to determine when pictorial, graphic and sculptural works—like the stripes and chevrons on the Varsity uniforms—may retain their copyrightability despite having been incorporated into such useful articles. And that in turn hinges on defining what, exactly, is the “utilitarian function” of the useful article in question; it is impossible to know if a design is separable from a function without first being very clear about what the function is.
The Origin of Separability
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