Shoveling a Path After Star Athletica

24 Pages Posted: 5 Jan 2020 Last revised: 23 Jan 2020

Date Written: December 13, 2019

Abstract

Star Athletica purported to tell us the circumstances under which copyright will protect creative features of useful articles, such as items of clothing or cars. While a design carved into the back of a chair would be understood as separable under anyone’s test, disputes arose over things like the overall shape of a belt buckle or the pattern of lines on an outfit that made it clearly a cheerleading uniform. Star Athletica resolved the latter issue while telling us that it answered all questions about separability. This article tries to analyze the decision in a way that helps think about future cases. An object that has a noncommunicative function can be protected by copyright, but copyright should never extend to functional aspects: parts or designs that make the object work. Also, I’ll discuss why design patent law should have been more important to the Court as a way of separating copyrightable and uncopyrightable designs and speculate about art and authorship in the new millennium. One reason that Star Athletica is so confusing is because we lack a coherent account of what kinds of creation copyright should protect, even as the statute tells us that not everything that is creative should be copyrightable “authorship.” Even without a completely coherent theoretical account, however, there are doctrinal tools that courts could employ to make their job easier in deciding individual cases.

Keywords: copyright, useful articles, separability

Suggested Citation

Tushnet, Rebecca, Shoveling a Path After Star Athletica (December 13, 2019). UCLA Law Review, Vol. 66, 2019. Available at SSRN: https://ssrn.com/abstract=3503167

Rebecca Tushnet (Contact Author)

Harvard Law School ( email )

Cambridge, MA
United States

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