In the unlikely context of a case concerning the design of cheerleading uniforms, the Supreme Court adopted a new standard for identifying the design elements of useful articles that are eligible for copyright protection.
For decades, courts have struggled to separate the functional aspects of useful articles, which are not entitled to copyright protection, from design features, which can be entitled to protection. In Star Athletica, L.L.C. v. Varsity Brands, Inc., the Court resolved “widespread disagreement” among lower courts, scholars and the U.S. Copyright Office, and articulated a new two-part test for determining when the design elements of useful articles are entitled to copyright protection. In our alert memo, we summarize the Court’s decision and discuss its impact on the fashion industry – and beyond.