Document Type

Working Paper

Publication Date

2017

Center/Program

Kernochan Center for Law, Media and the Arts

Abstract

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the “separability” predicate to copyright protection of decorative features of useful articles. The case involved the “surface decorations” of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the Supreme Court clarified the meaning and application of the “separability” standard for the kinds of decorative elements there at issue, the fate of other artistic “features” of useful articles, particularly their three dimensional forms, remains murky. Much of the Court’s analysis points toward a prophylactic rule excluding the entire shape of a useful article, but some aspects of the majority opinion indicate that the Court has yet to devise a coherent application of the statutory standard.

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