The Supreme Court recently held that certain cheerleader uniform features were eligible for copyright protection even though they were part of a useful article. See Star Athletica, LLC v. Varsity Brands, Inc., ___ U.S. ___ (Slip. op. March 22, 2017). The decision articulated a test that can be used to determine whether a design that is incorporated into a useful article can be protected on copyright law. Since it is common to incorporate such designs into useful articles, this case has far-reaching implications beyond cheerleader designs.

Justice Thomas summarized the issue that was before the Court in the first sentence of the opinion, as follows:

Congress has provided copyright protection for original works of art, but not for industrial designs. The line between art and industrial design, however, is often difficult to draw. This is particularly true when an industrial design incorporates artistic elements. Congress has afforded limited protection for these artistic elements by providing that “pictorial, graphic, or sculptural features” of the “design of a useful article” are eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Id. at 1 (citing 17 U. S. C. §101). 

The Court considered some preliminary issues and reviewed the text of the above-cited statute in detail. Next, the Court considered the Copyright Act in general, as it related to the specific statute-at-issue. Then, the Court considered the legislative history of the statute and, briefly, associated case law. Finally, the Court identified the apparent flaws in the dissenting opinion and in the petitioner’s argument.

The Court held that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.

This provides much-needed guidance as to what extent designs that are incorporated into useful articles can be protected by copyright.