The U.S. Supreme Court granted certiorari in Star Athletica, LLC v. Varsity Brands, Inc. to decide “[w]hat is the appropriate test to determine when a feature of a useful article is protectable under Section 101 of the Copyright Act?” The Supreme Court likely granted certiorari because the Sixth Circuit identified no fewer than nine different tests that courts and commentators had proposed for resolving the issue, and the Sixth Circuit adopted a tenth. The Supreme Court then issued its own opinion on March 22, 2017, setting forth a two‐part test grounded in the text of the statute while rejecting several proposed alternatives.
But there is an antecedent question that must be answered before the Supreme Court’s two‐part test in Star Athletica may be invoked; namely, whether the pictorial, graphic, or sculptural work at issue is the design of a “useful article” in the first place. On this question, the Supreme Court’s opinion is disappointingly silent.
The parties in Star Athletica and the Court both implicitly assumed, without analysis, that the cheerleading uniforms at issue were “useful articles.” That is likely the correct conclusion; however, the “useful articles” doctrine has always been an uncomfortable “fit” for clothing, costumes, and other garments, and there will undoubtedly be future cases involving other types of allegedly useful articles in which the antecedent question is even less certain. This essay aims to patch that gap, by providing guidance on the antecedent question of “what is a useful article?”