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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 premium CLE webinar with Q&A

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Conducted on Tuesday, May 9, 2017

Recorded event now available

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This CLE course 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


Carani, Christopher
Christopher V. Carani

McAndrews Held & Malloy

Mr. Carani is nationally recognized in the field of design law, regarding the protection and enforcement of aesthetic...  |  Read More

Max, Theodore
Theodore C. Max

Sheppard Mullin

Mr. Max is a member of the firm’s Entertainment, Technology and Advertising, and Intellectual...  |  Read More

Zerbo, Julie
Julie Zerbo

The Fashion Law

Ms. Zerbo is a lawyer and the founder and editor-in-chief of The Fashion Law blog. She has been profiled by the Wall...  |  Read More

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