In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s treatment of product designs that incorporate functionality. Its opinion failed to do so in a host of different ways. In this Essay, we address just one of the opinion’s shortcomings: its failure to adequately define and distinguish between a design’s functional and expressive features. Not only does the Court’s neglect produce uncertainty for creators, litigants, and judges, the opinion makes it substantially easier for copyright claimants to obtain protection for utilitarian aspects of designs, contrary to copyright statute and policy.
- Christopher Buccafusco & Jeanne C. Fromer
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- Professor of Law, Director of the Intellectual Property and Information Law Program, Benjamin N. Cardozo School of Law, Yeshiva University; Professor of Law, New York University School of Law; Co-Director, Engelberg Center on Innovation Law & Policy