April 12, 2017

On March 22, 2017, the Supreme Court issued its decision in Star Athletica, L.L.C. v. Varsity Brands,Inc.which concerned the copyrightability of two-dimensional designs appearing on the surface of cheerleading uniforms. The Court held that these surface decorations were eligible for copyright protection because they were “separable” from the useful articles on which they appeared. In doing so, the Court laid down a new, nationwide test for assessing the copyrightable aspects of useful articles, resolving much confusion in this area of law and affirming that two-dimensional fabric designs are protectable—an important win for the fashion and apparel industries. But the Court’s test also raises difficult questions for some three-dimensional sculptural works in useful articles and may have limited the scope of their protection in certain circumstances.