S-E-P-A-R-A-B-I-L-I-T-Y!
Taking a leap into the Supreme Court’s view on separability under the Copyright Act of 1976, we gain a thorough understanding on what makes a feature incorporated into a design eligible for copyright protection. Cheerleading uniforms, the subject of Star Athletica, LLC v. Varsity Brands, Inc., provide a great canvas for painting the requirements necessary to show separability.
In the 2017 case Star Athletica, LLC v. Varsity Brands, Inc., the Supreme Court created a test for establishing the criteria for copyright eligibility of design features for a useful article. The Copyright Act of 1976, particularly §§ 101 and 102, create copyright protection for “pictorial, graphic, and sculptural works,” which are defined as “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints, and art reproductions.” These works are protected for their craftsmanship and form but not for their utilitarian aspect. A design of a useful article will be copyrightable only if said design can be identified separately from, and can exist independently of, the utilitarian aspect of the article. The Supreme Court breaks this definition down in its creation of a two-pronged test for assessing the copyrightability of a design on a useful feature. This test, incorporated in the holding of Star Athletica, LLC v. Varsity Brands, Inc., is as follows: the design “(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.”
Varsity Brands, Inc. (Varsity), Respondents, holds “the largest [‘]K through College[’] sales force in the United States.” It is a largely successful company holding hundreds of copyrights for different cheerleading uniform designs. Star Athletica, LLC. (Star), Petitioner, at the time of this case, was a new company formed by an Athletic Lettering Company that had its supply agreement with Varsity terminated, along with the help of ex-Varsity employees.
During the dispute, Star argued, in part, that separability is only an issue when “a work is the design of a useful article.” However, this is not consistent with the reading of §101 stating that a design should be a combination of “details or features that go to make up the useful article.” Star’s argument creates an incorrect assumption that if the design “advance[s] the utility of the article,” then it is outside the scope of copyright protection. The analysis for separability is not whether the article is fully functional without the design. However, it is whether the design can be distinguishable as a pictorial, graphic, and sculptural work on its own, separate from the article. Thus, Star is placing incorrect focus on the article where §101 places focus on the design.
This Supreme Court decision offers clarity into copyright laws in the fashion space and offers minimal protections for fashion designers looking to copyright their works. This “groundbreaking” case provides those in the fashion world with an ounce of copyright protection, an industry that has historically been afforded little to no protection. For example, the style or cut of a garment is currently not eligible for copyright. However, Star Athletica’s holding offers copyright protection for utilities and designs, where fashion designers are able to safeguard their creations. Overall, this decision created more clarity and established a clear test for separability in design usage and copyrighting.