In an important copyright case for retailers, the Supreme Court, in Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. (2017), resolved “widespread disagreement” among the circuits, and adopted a single test to determine the copyrightability of designs incorporated in “useful articles.” The Court held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or 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 in some other medium if imagined separately from the useful article.” Applying that test to Varsity Brands’ cheerleading uniforms, the Court concluded that the “arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms” are separable from the uniforms and eligible for copyright protection.

In Star Athletica,