Forgetting Functionality

By
166 U. Pa. L. Rev. Online 119 (2017)

Posted on Oct. 24, 2017

Issue - Forgetting Functionality










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.


Continue to full article.


Next Essay 

Knowing Separability When We See It

Mark P. McKenna

Essays in this Edition


Shyamkrishna Balganesh

Jane C. Ginsburg

Tyler T. Ochoa

Mark P. McKenna

Peter S. Menell & Daniel Yablon