Litigation Alert: Supreme Court Clarifies Copyright Eligibility For Useful Articles

While much of the legal press may be speculating about the future of the Supreme Court's Chevron test, yesterday the Court considered a very different kind of "chevron"—a design on a cheerleader uniform. In Star Athletica LLC v. Varsity Brands Inc., the Supreme Court formulated a two-part test to determine when the design of a "useful article," such as the design of an article of clothing, qualifies as a "pictorial, graphic, [or] sculptural work" eligible for protection under the Copyright Act. The Court held that a feature incorporated into the design of a useful article is eligible for protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, (2) would qualify as a protectable pictorial, graphic, or sculptural work "if it were imagined separately from the useful article." Applying the test, the Court held that designs on cheerleader uniforms consisting of lines, chevrons, and colorful shapes