Late last month, the Supreme Court decided an interesting case at the very cusp of what constitutes a copyright-eligible design as opposed to an ineligible article of manufacture. See Star Athletica, LLC v. Varsity Brands, Inc. (No. 15-866). In 2010, the cheerleading clothing outfit behemoth Varsity Brands claimed that a competitor, Star Athletica, copied several of its cheerleading outfit designs (e.g., chevrons, stripes, etc.) and sued Star for copyright infringement under 17 U.S.C. §101 of The Copyright Act of 1976. The Act mandates that “the design of a useful article” is eligible for copyright if “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.”1 This aspect of the Act is commonly referred to as the “separate – identification and independent – existence” requirement or, put simply, the “Separability Test”. Varsity argued that since cheerleading uniforms (“the useful article”) could either contain or lack superficial designs, the designs themselves are in fact separate graphic works that make uniforms unique and are therefore subject to copyright protection. Counter to this position, Star claimed that the designs on a cheerleading uniform are inherent to the uniform and are not stand-alone, separate design elements.
