The United States Supreme Court recently handed down its decision in Star Athletica v. Varsity Brands; a case involving a dispute over whether designs used on cheerleader uniforms could be protected by copyright law. Varsity Brands, the plaintiff at the trial court level and a leading maker of cheerleader uniforms, brought an action against competitor Star Athletica alleging that certain uniform designs used by Star infringed upon those created by Varsity. The critical issue in the case was the standard for “conceptual separability”; that is, the test used by courts to determine whether a design used on a salable product can be perceived as a copyright-able work separate from the product itself. In its decision the Court clarified the test as follows:
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.
This test is a departure from tests applied by courts in earlier cases which focused to a degree upon physical separability. Applying the new test in this case, the Court held that:
…the surface decorations on the cheerleading uniforms are separable and therefore eligible for copyright protection. First, the decorations can be identified as features having pictorial, graphic, or sculptural qualities. Second, if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art under [copyright law]. Imaginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uniform itself.
The decision is likely to be boon for product manufacturers that use highly stylized designs in their products. Being able to protect those designs more readily under copyright law puts a new arrow in the quiver of those companies.
The Lawson Firm, LLC (“TLF”) helps companies of all sizes to maximize protection of their valuable intellectual property including copyright-able works, trademarks, trade secrets, and other valuable business assets. Contact us to determine how we may be of assistance to your company.♦
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