Supreme Court Cheers on Copyright Separability

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The court held that a feature incorporated into a design of a useful article is eligible for copyright protection if, separate from the useful article, the feature (1) can be perceived as a two or three dimensional work of art and (2) would qualify as a protectable pictorial, graphic, or sculptural work on its own or in another tangible medium of expression.

Star Athletica, which was founded by a former Varsity employee and sells similar uniforms for less, disagreed.

In a statement Varsity Brands published following the Supreme Court decision, founder Jeff Webb said: "Today's favorable ruling represents the culmination of years of hard work to protect our original design, and we are of course gratified by the outcome and what it means for our business".

Justice Stephen G. Breyer, in a dissent joined by Justice Anthony M. Kennedy, said "the pictures on which Varsity seeks protection do not simply depict designs".

The majority then explained that its interpretation of Section 101 was consistent with both the Copyright Act "as a whole" and the history of the statute. The Court further explained that its holding was in line with its prior jurisprudence and prior Copyright Office regulations that predated the current Copyright Act.

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"First, one can identify the decorations as features having pictorial, graphic, or sculptural qualities", Thomas wrote. Without the decorations, a uniform "looks exactly like the ubiquitous little black dress", Star stated in its brief.

The fact that the design follows the contours of a cheerleading uniform is not a bar to copyright, Thomas said.

Finally, the majority rejected three arguments raised by the petitioner.

Justice Ruth Bader Ginsburg concurred in the result, pointing out that the Court did not have to discuss the separability test at all because the designs at issue were not themselves useful articles, but rather standalone, two-dimensional pictorial and graphic works reproduced on a useful article.

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