Member News

Supreme Court Rules on New Separability Test for Copyrights on Designs


On March 22, 2017, the Supreme Court issued its opinion in Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866.  In a 6-2 decision, the Court held that decorative elements of a cheerleader’s outfit were separable from the functionality of the underlying garment and thus eligible for protection under copyright law.  Justice Thomas wrote the majority opinion, with Justice Ginsburg concurring in the outcome, and Justices Breyer and Kennedy dissenting.  Specifically, the Supreme Court held that “a feature incorporated into the design of a useful article is eligible for copyright protection only 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 fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”  Slip Op. at 1-2.

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Compliments of Fried Frank – a member of the EACCNY