Navigating Separability After Star Athletica: Applying the New Test

On Mar. 22, 2017, the Supreme Court established a new standard for copyrightability of useful articles in Star Athletica v. Varsity Brands. Prior to this decision, lower courts did not agree on how to determine copyrightability of pictorial, graphic or sculptural (PGS) aspects of useful articles and had developed several tests to achieve that end.

In Star Athletica, the Court held that a PGS feature incorporated into the design of a useful article is separable, and thus eligible for copyright protection, if the feature can be perceived as a work of art separate from the useful article and would qualify as a protectable work if it were imagined separately from the useful article. As to the facts of the case, the Court concluded that the designs on the uniforms were separable and thus protectable.

In view of this significant decision, counsel will need to reassess protecting and clearing aesthetic designs. The impact of the Star Athletica decision is expected to be broad—from the fashion industry to product design and beyond. Counsel must prepare to navigate the changing landscape and apply the new test for copyrightability.

Listen as our authoritative panel reviews the Star Athletica decision and how it expands copyright protections. The panel will examine the Court’s new test for copyrightability as well as the impact on the fashion industry and beyond. The panel will also discuss the implications for copyright litigation.

1. Star Athletica v. Varsity Brands (U.S. Mar. 22, 2017)
   1. Quick review of how we got here
   2. Separability
   3. The new test—expansion of copyright protection
2. Impact on the fashion industry
3. Implications beyond fashion
   1. Product design and applied arts
   2. Virtual design, including graphical user interfaces, video games, icons
   3. Accessories
   4. Others
4. Implications for copyright litigation

The panel will review these and other key issues:

• The Supreme Court’s new test for Separability of PGS aspects of useful articles
• The likely impact of the Supreme Court’s decision on the fashion industry, applied arts, virtual design and more
• How IP counsel can leverage the expanded copyright protection and guard against copyright infringement