In the wake of the U.S. Supreme Court’s ruling in Star Athletica v. Varsity Brands in 2017, U.S. federal district courts and the Copyright Office Review Board have grappled with the Supreme Court’s reimagined conceptual separability test for determining the copyrightability of artistic aspects of useful articles. An examination of the decisions in the first eighteen months post-Star Athletica reveals district courts have interpreted the Supreme Court’s guidance inconsistently, with some courts adding language to the test and even using overruled portions of previous tests. The author takes an empirical approach to evaluating such decisions and the trends that emerge from them. The examined range begins at the issuance of the Star Athletica decision in March 2017 and ends in mid-October 2018. Because courts continue to struggle to define protectable elements of useful articles despite the Supreme Court’s guidance, the author proposes that Congress should enhance the conceptual separability test in the Next Great Copyright Act. In the meantime, litigants may take some lessons from Star Athletica, such as to examine whether the object even constitutes a useful article and to disregard artistic judgment and the remainder of a useful object aside from the separable design. Also, litigants may consider the guidance that emerges from lower court cases, such as the “primary function” test from Judge Forrest of the Southern District of New York.
Daan G. Erikson,
Copyright Protection for Conceptually Separable Artistic Features Post-Star Athletica: A Useful Article on Useful Articles,
Chi.-Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol18/iss1/3