Knowing Separability When We See It

Abstract

This contribution to the University of Pennsylvania Law Review's online symposium on Star Athletica v. Varsity Brands argues that the majority's test for separability misses the mark because it is disconnected from the purpose of the useful articles doctrine and particularly the requirement of separability. Congress intended the separability requirement to distinguish applied art from industrial design, admitting the former as potential copyright subject matter but excluding the latter. Because the Court misunderstood that foundational purpose, it abstracted away from Congress' central examples of separability and opened the door to protection of a wide range of previously unprotectable features. The Court's formulation also puts significant pressure on claiming in useful articles cases, which is a problem because copyright claiming is not well developed generally.