New Supreme Court Decision

on Copyright Designs
Jiminian Law PLLC
The Facts

Varsity Brands sued Star Athletica for
infringing five registered graphic designs that
are incorporated on cheerleading uniforms
and other clothes.

Designs consist of arrangements of chevrons,
curves, stripes, color, and other shapes.
The Facts (cont.)

Star petitioned for certiorari asking the
Supreme Court to resolve: “what is the
appropriate test to determine when a
feature of a useful article is protectable”?
The Decision

The Supreme Court held for Varsity based
on the idea that graphic designs were
separately identifiable from the uniforms
and so worthy of copyright protection.
The Supreme Court's
2-Part Test
The Supreme Court used a two-part test, holding that a
design feature of a useful article is eligible for copyright if the

“(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
The Court's Reasoning

Applying the test, the Court held that
Varsity’s surface designs can be
separated from the cheerleading uniforms
they are part of because they can be
identified separately and are capable of
existing in another medium—like on a
painting or an illustration.
Why This Case
Before this case, the Copyright Office and
federal courts had recognized physical
separability as a separate test making it harder
to protect designs on useful articles.

Now the Court says that it does not matter
whether a design is “physically separable” from
a useful article. It is protectable if it meets the
Court's test.
Why This Case
Matters (cont.)

The Court rejected other approaches to separability such as
aspects of the Copyright Office's side-by-side test, the
designer's subjective intent or whether the artistic feature
would be independently marketable or not.

Now the Supreme Court has cleared things up and the KEY
TAKEAWAY is that what matters is whether the work is
separable from the useful article, not whether the useful
article remains fully functional with the work removed.
How This Helps You
If you're in fashion or design, there is now
more clarity into what aspects of your designs
can be protected, particularly in useful article.

If you wish to use copy someone’s useful
article desing (ex. A work uniform), tread
carefully, aspects of the designs may be

As always, check with a lawyer before moving
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