Copyright on a Useful Item

Screen-Shot-2016-05-02-at-2.27.31-PM[1]Today the Supreme Court heard oral arguments in the pending copyright case of Star Athletica v. Varsity Brands.  Although not a patent case, the issue involves the boundary line (if any) between patent and copyright and the “useful article” exception. Question Presented: What is the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act.  The statutory test under Section 101 states that “the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Clothing has traditionally been seen as useful and therefore not itself subject to copyright protection.  Here, the subject matter is the design of a cheerleader outfit (see image at right).

Petitioner (Mr. Bursch) began with a provocative statement that probably says more about copyright law than the case itself: “Mr. Bursch: Congress did not intend to grant a century-long copyright monopoly in cheerleader uniform design.”

I expect that the court’s consideration of this case will also have some impact on its views regarding the coverage of design patents in Apple v. Samsung.


Read the transcript


11 thoughts on “Copyright on a Useful Item

  1. 4

    Breyer clearly has the most intellectual engagement with intellectual property. He thoroughly dominated the laches argument the other day.

    Yes MM, the appropriate boundaries of Copyrights and Patents WRT conveyance of useful information are metaphysical inquiries- when reduced to human affairs, they are political ones.

    1. 4.1

      Keep on “glomming” without regard to actual patent law, or its history, Mr. Snyder.

      You should be aware that the (first) President Clinton’s release of presidential papers labeled Justice Breyer as one of the most “off the reservation” as regards actual law. You just happen to like the Ends that Breyer leans towards.

      That’s a rather unhealthy (legally) posture to take: ig norance coupled with legislating from the bench coupled with disregard for the actual law.

  2. 3

    I attended the oral argument and walked away with a sinking feeling, as compared to after reading the merit briefs. Kagan “got it,” Ginsburg, who really gets fashion, may have been dozing, Sotomayor was confused in both cases, and Breyer went to town on respondent. Respondent stumbled on the camo hypo, messed up the Duchamp exercise, and should have owned the century-long term statement supplemented with other examples that enjoy such long protection; his hesitation felt like a concession.

    1. 2.1

      Another example of where we can agree. The Sup. Ct. is about to overhaul design patent infringement damages calculations, and might well also do so for appropriate appeals from Fed. Cir. cases on design patent 103 tests and claim scope – infringement tests.

  3. 1

    Mr. Bursch: Congress did not intend to grant a century-long copyright monopoly in cheerleader uniform design.

    An excellent beginning! I look forward to reading the rest of the transcript.

    1. 1.1

      Four thoughts after reading the transcript:

      1) It’s difficult to argue that these kinds of legal questions lack a metaphysical aspect when the Justices are invoking the surrealists (successfully) to illustrate their points.

      2) Referring back to the earlier thread on the desirability of the Copyright Office and PTO taking a more “unified” approach, it’s interesting to read the discussions in the transcript about the meaning(s) of terms such as “utility”, “functionality” and “information” in the context of 17 USC 101.

      3) Kudos to the Justices for their forward-looking and practical approach to the issues.

      4) I give the edge to Petitioner.

      5) I laughed out loud:

      BREYER: The clothes on the hanger do nothing; the clothes on the woman do everything. And that is, I think, what fashion is about.

      KAGAN: That’s so romantic.

Comments are closed.