Under the Copyright Act, a “useful article” such as a chair, a dress, or a uniform cannot be copyrighted. 17 U.S.C. § 101. The article’s component features or elements cannot be copyrighted either, unless capable of being “identified separately from, and ... existing independently of, the utilitarian aspects of the article.” Id. Circuit courts, the Copyright Office, and academics have proposed at least nine different tests to analyze this separability. The Sixth Circuit rejected them all and created a tenth. The first question is:
What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?
DECISIONDecided March 22, 2017 HOLDING
A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a twoor three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. That test is satisfied here.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and ALITO, SOTOMAYOR, and KAGAN, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment. BREYER, J., filed a dissenting opinion, in which KENNEDY, J., joined.
ORAL ARGUMENTArgued October 31, 2016
CERTIORARI STAGEGranted May 2, 2016
Certiorari Stage Documents
Petition for Certiorari (pdf download)
Brief in Opposition (pdf download)
Petitioner's Reply (pdf download)
Other Certiorari Stage Documents
Amicus Brief of FormLabs Inc, et al supporting Petition for Certiorari (pdf download)
Amicus Brief of Public Knowledge, et al supporting Petition for Certiorari (pdf download)
United States Court of Appeals for the Sixth Circuit
Decided August 19, 2015
|May 2, 2016||Supreme Court Dives Into Copyright Fight Over Cheerleader Uniforms||Daniel Fisher||Forbes|