Three Cheers for Copyrights: SCOTUS Establishes New Standard for Determining Separability

April 04, 2017
Post by Nicholas J. Krob

On March 22, the U.S. Supreme Court issued a ruling aimed at resolving “widespread disagreement” over an important aspect of copyright law.

Under U.S. copyright law, “original works of art” are capable of protection, whereas “useful articles” are not.  However, the distinction between works of art and useful articles can often be hazy, particularly when the two are both present in the same work.

This distinction was at the center of the dispute between competing cheerleading uniform companies Star Athletica, L.L.C. and Varsity Brands, Inc.  Varsity Brands, who owns numerous U.S. copyright registrations for two-dimensional designs that appear on the surface of cheerleading uniforms, sued Star Athletica for copyright infringement in 2010.  Ultimately, the parties disputed whether these uniform designs were useful articles not subject to copyright protection or decorative, expressive elements that were conceptually separable from the underlying garments themselves such that they were subject to copyright protection.

The task of determining such “separability” has long been a tricky one for courts, with various circuits taking different approaches and applying nearly a dozen different tests.  In ruling on the matter, however, the U.S. Supreme resolved this uncertainty by establishing a new, nationwide standard.

In an opinion written by Justice Clarence Thomas, the Court established a two-part test for when a feature incorporated into the design of a useful object is separable, and thus copyrightable.  First, the feature must be able to “be perceived as a two- or three-dimensional work of art separate from the useful article.”  Additionally, the feature must “qualify as a protectable pictorial, graphic, or sculptural work, either on its own or fixed in some other tangible medium of expression, if it were imagined separately from the useful article into which it is incorporated.”

Applying this test to the case at hand, the Court found that the designs on the surface of the cheerleading uniforms, which consisted of arranged lines, chevrons, and colorful shapes, were separable features from the uniform garments themselves and were thus eligible for copyright protection.

While the Court’s ruling left some unanswered questions, it will serve to provide clarity and a level of certainty for various copyright matters moving forward—something worthy of cheering for!


Nicholas Krob is an Intellectual Property Attorney in the Litigation Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Nick directly via email at .


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