02/09/2018 – Copyright Law Update: “Design Protection” In “Useful Articles”

By Jeffrey E. Jacobson, Esq.

            The Supreme Court decision in Star Athletica v. Varsity Brands last year clarified the law on copyrightability of the creative elements in useful articles.

That case involved alleged copyright infringement of cheerleading uniforms. Since a uniform is a useful article, usually it is considered not copyrightable. Years ago some Halloween costumes were registered for copyright; but, it was claimed that they were soft sculptures.

This recent Supreme Court decision establishes that the creative elements of useful articles are protectable under copyright.  In particular, the Court stated that a “useful product will be protected if [the product] ‘(1) can be perceived as a two or three-dimensional work of art separate from the useful article, and, (2) [the separate product] 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 in which it is incorporated.’”

This article is not intended as legal or business advice, as an attorney or other professional specializing in the field should be consulted. Please contact Jeffrey @ jeffrey@jacobsonfirm.com for additional information.

© 2018 The Jacobson Firm, P.C.

About the author

Justin M. Jacobson, Esq. - Vice-President, The Jacobson Firm, P.C. - Attorney Specializing in Entertainment, Sports, Esports, Fashion and Art Law. In particular, The Jacobson Firm, P.C. handles Trademarks, Copyrights, Contracts, Estate Planning, Music Business and Brand Development on behalf of creative talent and lifestyle brands.

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