I want to discuss a major copyright case that the Court added to its docket for the Fall. The question presented in Star Athletica, LLC v. Varsity Brands, Inc. is “What is the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act?” This is an issue that has long vexed the circuit courts and is exactly the type of case that the Court should be taking while it’s a man down.
Here is the problem. Copyright law says that functional/useful items generally cannot get protection. This makes sense because they are only supposed to get patents given the costs that exclusive rights in those sorts of products impose. But what if something has both functional and aesthetic features? Take a belt buckle. It is functional in the sense that it holds up your pants. But a jeweled belt buckle might well be an adornment that is more properly considered artistic and thus copyrightable. How do you know?
Courts have put forward several possible tests. One says that the issue is whether the item is primarily aesthetic or functional. Another looks to the intent of the designer. A third simply considers the totality of the circumstances. A fourth suggests that the aesthetic aspect must be “conceptually separable” from the functional one and able to stand on its own as a work. And so on.