Courts, Not Congress, Are Resolving Copyright Issues

The most significant developments in U.S. copyright law will be coming from the courts and not elected officials this year, continuing a trend from 2016.

Congress is not expected to expand copyright protection for clothing, combat offshore online piracy, broaden exemptions to software anti-circumvention protection or otherwise modernize the Copyright Act, despite demands from the public for these and other copyright reforms. Instead, the courts are likely to remain the principal source for meaningful substantive and procedural changes to copyright law.

For example, the Supreme Court recently issued a decision in the so-called "cheerleader uniform" case, creating a very permissive standard for determining whether the pictorial, graphic and sculptural features of a useful article are protected by copyright. Under this new standard the aesthetic features of an industrial design, like the surface decorations on a cheerleading uniform, are protected by copyright when