Forgetting Functionality

9 Pages Posted: 22 Aug 2017 Last revised: 8 Nov 2017

See all articles by Christopher Buccafusco

Christopher Buccafusco

Yeshiva University - Benjamin N. Cardozo School of Law

Jeanne C. Fromer

New York University School of Law

Date Written: October 1, 2017


In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s treatment of product designs that incorporate functionality. Its opinion failed to do so in a host of different ways. In this comment (as part of the symposium From Shovels to Jerseys: A Guide to Apply Star Athletica v. Varsity Brands), we address just one of the opinion’s shortcomings: its failure to adequately define and distinguish between a design’s functional and expressive features. Not only does the Court’s neglect produce uncertainty for creators, litigants, and judges, the opinion makes it substantially easier for copyright claimants to obtain protection for utilitarian aspects of designs, contrary to copyright statute and policy.

Keywords: Copyright, Patent, Design, Function, Utility, PGS, Useful Articles, Statutory Interpretation, Cheerleading, Dress, Clothing, Garment

JEL Classification: K39

Suggested Citation

Buccafusco, Christopher J. and Fromer, Jeanne C., Forgetting Functionality (October 1, 2017). University of Pennsylvania Law Review Online, Vol. 166, p. 119 (2017), Cardozo Legal Studies Research Paper No. 525, NYU School of Law, Public Law Research Paper No. 17-33, NYU Law and Economics Research Paper No. 17-41, Available at SSRN:

Christopher J. Buccafusco

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Jeanne C. Fromer (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States

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