Traditional wisdom has been that aesthetic designs for
three-dimensional consumer products, while protectable by design
patents and as trade dress, are not protectable under copyright law
which is typically associated with purely artistic works. However,
the Supreme Court's March 2017 decision in Star Athletica,
L.L.C. v. Varsity Brands, Inc. refined the test for
copyrightability of so-called "useful articles," opening
the door to copyright protection for a broader array of consumer
product shapes and patterns. Now, several recent cases interpreting
Star Athletica confirm that the right kind of industrial
designs can indeed be copyrighted. Given that copyright
registrations cost so little to acquire, last for decades, and
carry the potential for high damages against infringers, companies
should consider whether certain of their consumer product designs
may now be eligible for copyright protection.
