New Possibilities For Copyrighting Consumer Products

Traditional wisdom has been that aesthetic designs for three-dimensional consumer products, while protectable by design patents and as trade dress, are not protectable under copyright law which is typically associated with purely artistic works. However, the Supreme Court's March 2017 decision in Star Athletica, L.L.C. v. Varsity Brands, Inc. refined the test for copyrightability of so-called "useful articles," opening the door to copyright protection for a broader array of consumer product shapes and patterns. Now, several recent cases interpreting Star Athletica confirm that the right kind of industrial designs can indeed be copyrighted. Given that copyright registrations cost so little to acquire, last for decades, and carry the potential for high damages against infringers, companies should consider whether certain of their consumer product designs may now be eligible for copyright protection.

The Supreme Court Explains That "Design Patent And Copyright Are Not Mutually Exclusive"

The Copyright Statute at 17 U.S.C. § 101 provides that a "pictorial, graphic, or sculptural featur[e]" incorporated into the "design of a useful article" is eligible for copyright protection if it (1) "can be identified separately from," and (2) is "capable of existing independently of, the utilitarian aspects of the article." The Star Athletica case dealt with the question of whether aesthetic patterns on cheerleading uniforms were eligible for copyright protection. Opponents of copyrightability argued that the designs were inextricably intertwined with the uniforms because the uniforms were not useful as cheerleading attire without the designs, and because the patterns were in the shape of the uniforms. A majority of the Supreme Court disagreed, finding that the uniform patterns were no different than "a design etched or painted on the surface of a guitar" (which would be copyrightable). The Court went on to explain that it was unnecessary to prove that the product in question would remain useful without the aesthetic design, but rather only necessary to show that "the separated [aesthetic] feature qualify as a nonuseful pictorial, graphic, or sculptural work on its own." The Court rejected the idea that Congress had intended to preclude copyright protection for industrial designs, and explained that "we have long held that design patent and copyright are not mutually exclusive." In summation, the Supreme Court held that "an artistic feature of the design of...

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