The Need for Supreme Clarity: Clothing, Copyright, and Conceptual Separability

For the first time in history, the U.S. Supreme Court will address copyright protection in the context of apparel in the case Star Athletica, LLC v. Varsity Brands, Inc. This case tackles arguably the most vexing, unresolved question in copyright law: How to determine whether artistic features of a useful article—such as a garment or piece of furniture—are conceptually separable from the article and thus protectable. Indeed, this case comes more than sixty years after Mazer v. Stein, the Supreme Court’s first and,until this date, only decision in this area. A lack of clear guidance from the Supreme Court and Congress in determining whether the artistic and utilitarian aspects of useful articles are conceptually separable, has resulted in a multitude of conflicting and effectively unreliable approaches by courts and scholars in an attempt to establish a standard. Given this reality, the current state of conceptual separability demands clarity and reform. This Note proposes a two-part conceptual separability test, which asks: (1) what are the claimed design elements of the article; and (2) can those design elements be identified separately from, and exist independently of, the utilitarian features of the article? This Note’s proposed test is an effective and appropriate approach for determining when a feature of a useful article is protectable under the Copyright Act for several reasons: focusing the conceptual separability inquiry on the article’s design elements as opposed to its utilitarian features avoids inconsistent results; the two-part inquiry draws from language of the Copyright Office, which in turn reflects agreement between the legislative and judicial branches; the ordinary, reasonable observer standard is consistent with other aspects of copyright law; and the proposed test is practical in its application