Navigating Separability After Star Athletica: Applying the New Test

Reassessing Protecting Aesthetics, Implications for the Fashion Industry to Product Design

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, May 9, 2017
Recorded event now available

This CLE webinar will provide guidance to IP counsel on the Supreme Court’s recent decision in Star Athletica v. Varsity Brands and its impact. The panel will review the decision and the new test the Court established for copyrightability. The panel will examine how it expands copyright protections and the potential impact on the fashion industry and beyond. The panel will also discuss the implications for copyright litigation.


On Mar. 22, 2017, the Supreme Court established a new standard for copyrightability of useful articles in Star Athletica v. Varsity Brands. Prior to this decision, lower courts did not agree on how to determine copyrightability of pictorial, graphic or sculptural (PGS) aspects of useful articles and had developed several tests to achieve that end.

In Star Athletica, the Court held that a PGS feature incorporated into the design of a useful article is separable, and thus eligible for copyright protection, if the feature can be perceived as a work of art separate from the useful article and would qualify as a protectable work if it were imagined separately from the useful article. As to the facts of the case, the Court concluded that the designs on the uniforms were separable and thus protectable.

In view of this significant decision, counsel will need to reassess protecting and clearing aesthetic designs. The impact of the Star Athletica decision is expected to be broad—from the fashion industry to product design and beyond. Counsel must prepare to navigate the changing landscape and apply the new test for copyrightability.

Listen as our authoritative panel reviews the Star Athletica decision and how it expands copyright protections. The panel will examine the Court’s new test for copyrightability as well as the impact on the fashion industry and beyond. The panel will also discuss the implications for copyright litigation.


  1. Star Athletica v. Varsity Brands (U.S. Mar. 22, 2017)
    1. Quick review of how we got here
    2. Separability
    3. The new test—expansion of copyright protection
  2. Impact on the fashion industry
  3. Implications beyond fashion
    1. Product design and applied arts
    2. Virtual design, including graphical user interfaces, video games, icons
    3. Accessories
    4. Others
  4. Implications for copyright litigation


The panel will review these and other key issues:

  • The Supreme Court’s new test for Separability of PGS aspects of useful articles
  • The likely impact of the Supreme Court’s decision on the fashion industry, applied arts, virtual design and more
  • How IP counsel can leverage the expanded copyright protection and guard against copyright infringement


Christopher V. Carani, Shareholder
McAndrews Held & Malloy, Chicago

Mr. Carani is nationally recognized in the field of design law, regarding the protection and enforcement of aesthetic design through the use of design patents, copyrights and trade dress. A registered attorney before the USPTO, Mr. Carani secures and enforces design rights for some of the world’s most design-centric companies and designers. He has litigated design right cases in subject matter areas ranging from footwear and apparel to medical devices and furniture. In 2016, IAM Magazine included Mr. Carani in its IAM 1000 referring to him as one of the U.S.’s “pre-eminent design law experts.” He is currently the Chair of the AIPPI Design Rights Committee and former Chair of both the ABA’s Design Rights Committee and AIPLA Committee on Industrial Designs. Mr. Carani is the Editor-in-Chief of the forthcoming book entitled “Design Rights: Functionality and Scope of Protection.” The book will be published in October of 2017 by publisher Walters Klowers N.V. 

Theodore C. Max, Partner
Sheppard Mullin Richter & Hampton, New York

Mr. Max is a member of the firm’s Entertainment, Technology and Advertising, and Intellectual Property Practice Groups, focusing on counseling clients on IP issues and litigation. He is Co-Leader of the firm's Fashion and Apparel Team. Mr. Max has counseled clients on and litigated numerous cases involving issues on the cutting edge of copyright and trademark law. He has assisted clients in identifying, protecting and preserving their intellectual property assets, including seeking registration of rights in the U.S. and internationally and taking action against infringements of copyrights, trademarks and trade dress. He also has experience developing and implementing anti-counterfeiting programs and pursuing civil and criminal enforcement remedies.

Julie Zerbo, Founder
The Fashion Law, New York

Ms. Zerbo is the founder and editor-in-chief of The Fashion Law, one of the leading authoritative sources dedicated to the field of fashion law and the business of fashion. She authored a chapter and assisted in editing Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys, the principal fashion law textbook in law schools in the U.S., as well as Navigating Fashion Law: Leading Lawyers on Exploring the Trends, Cases, and Strategies of Fashion Law and Essays in Economic & Business History. Ms. Zerbo consistently speaks and guest lectures at industry events and educational institutions, and in various media formats on the topics of fashion law, business, intellectual property at large, and pop culture, and exclusively pens Women’s Wear Daily’s “WWD Law Review” weekly feature.


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