Intellectual Property Law

New Matter SUMMER 2017 Volume 42, Number 2

Copyright Commentary

WILLIAM J. O’BRIEN
One LLP

THE SUPREME COURT SPEAKS ON COPYRIGHTS IN USEFUL ARTICLES: WHERE DO WE STAND AFTER VARSITY BRANDS V. STAR ATHLETICA?

"Be careful what you wish for…."1

More than a year ago, I suggested that it might be "time for our highest court to clarify the scope of copyright protection for clothing, cars, and other useful articles…."2 One of the two cases on which I focused was Varsity Brands, Inc. v. Star Athletica, L.L.C., in which the Sixth Circuit held that cheerleader uniform features such as stripes, chevrons, and color blocks "can be identified separately from, and are capable of existing independently of, the utilitarian aspects" of the uniforms and thus are protected by copyright.3 I quoted the dissenting Sixth Circuit judge who had said that, "until we get much-needed clarification, courts will continue to struggle and the business world will continue to be handicapped by the uncertainty of the law."4 I concluded that, "[a]bsent Supreme Court intervention, there is no clear limit to the expansion of copyright protection for product designs."5

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