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Cheering On Useful Articles

The Copyright Act of 1976 was created to protect original works with artistic qualities such as literature, music, screenplays, etc. However, the Copyright Act does not protect "useful article[s]" which are "article[s] having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." 17 U.S.C. §101. However, what happens when a useful article has some artistic features? In this instance, the Copyright Act allows protection of the artistic features of a useful article if these artistic features "can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C. §101. However this language sparked different tests throughout the circuits on when a feature can be identified separately and survive independently. This year, the Supreme Court of the United States took up a case that looked at what was the appropriate test to determine when a feature of a "useful article" is copyrightable under the Copyright Act.

The case, Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017), centered around a dispute between two rival cheerleading uniform design companies. Varsity had acquired over 200 copyright registrations for two-dimensional designs appearing on their uniforms in the shape of chevrons, lines, curves, and various shapes. Star Athletica had been accused of infringing some of these copyrights in five uniform designs. Initially, the District Court entered summary judgment for Star because the designs could not be separated from the uniforms. The Sixth Circuit reversed, concluding the design could be identified separately from the uniforms and were capable of existing independently.


The Supreme Court, in a majority opinion authored by Justice Clarence Thomas, affirmed the Sixth Circuit's decision. The Court also stated that the proper test for determining when a feature of useful article is copyrightable. The Court stated 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." Id. at 1007.

When applying this test to the facts, the majority concluded that the designs on the useful article could be identified as having "pictorial, graphic, or sculptural qualities" and if the arrangement had been separated they would qualify as a protectable piece of art. Id. at 2012. Therefore, the designs passed the test and were protected by the Copyright Act from infringement. Justice Breyer and Justice Kennedy dissented though they agreed with the test proffered by the majority. Id. at 1030.

Here at Taylor Dunham and Rodriguez LLP, we are always educating ourselves on the evolution of law in our legal practice. Our Austin-based lawyers are experienced in enforcing the copyrights of companies and individuals. So if you believe that your copyright has been infringed, do not hesitate to contact Taylor Dunham and Rodriguez LLP for legal assistance.

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