Essays - University of Pennsylvania Law Review Online
The University of Pennsylvania Law Review Online first began publishing essays in October 2010. Scholars interested in contributing essays to Penn Law Review Online should visit our Submissions page. We prefer Essays that do not exceed 4,500 words within the main text, and 2,000 words within the footnotes.

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The Sum is More Public Domain than its Parts?: US Copyright Protection for Works of Applied Art Under Star Athletica’s Imagination Test

Jane C. Ginsburg
166 U. Pa. L. Rev. Online 83 (2017)

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the “separability” predicate to copyright protection of decorative features of useful articles. Adopting the Gordian imagery evoked by other appellate courts, the Sixth Circuit in Varsity Brands lamented “[c]ourts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article’s utilitarian function.” Star Athletica involved the “surface decorations” of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the Supreme Court clarified the meaning and application of the “separability” standard for decorative elements of the kind at issue in that case, the decision leaves the knots as tangled as ever when a claim of copyright concerns the entire form of a useful article.

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