When Is Apparel More Than Just Apparel? When Its Surface Decorations Are Conceptually Separable, Even Two Dimensional Designs Will Do.

The Supreme Court Finally Weighs In On The Boundaries Of Copyrightability For Useful Articles

After decades of uncertainty about the standard for the copyrightability of "useful articles," the Supreme Court has finally provided copyright holders with guidance to resolve this thorny issue. On March 22, 2017, the Court decided Star Athletica v. Varsity Brands and set forth the test for determining whether original expression embodied in an otherwise utilitarian work is entitled to protection under the Copyright Act. On one hand, the Court gave much needed guidance on what constitutes "conceptual separability," but on the other it made clear that its decision was not a blanket message that all fashion designs are copyrightable, only that the "surface decorations" at issue here are.