Is the Supreme Court breathtakingly dishonest or just completely clueless?

On Wednesday, March 22, 2017, the United States Supreme Court issued a decision in Star Athletica LLC v. Varsity Brands, Inc. The case called upon the Court, in the opinion of the majority, to address the thorny issue of conceptual separability; a test for which there was absolutely no agreement among the Regional Circuit Courts of Appeal.

The question addressed by the majority was whether designs on cheerleader uniforms could be copyrighted separate from the uniform itself, which is not copyrightable because useful articles are not copyright protectable. The Supreme Court, in an opinion by Justice Thomas, joined by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan, held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” (Slip op. at 17) The Court went on to also determine that the cheerleader uniforms satisfied this test and, therefore, affirmed the Court of Appeals for the Sixth Circuit. Id.

The majority opinion, although in favor of the copyright holder, was not without certain problems. First, Justice Ginsburg, who concurred in the outcome but not in the opinion, was exactly right. The Court did not need to reach the issue of conceptual separability in this case. Ginsburg wrote: “Consideration of [separability] test is unwarranted because the designs at issue are not designs of useful articles. Instead, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles.” (Ginsburg concurring at 1).

Regardless of the fact that Justice Ginsburg was alone correct, the majority has settled the law on conceptual separability, which should be positive. At least now the law won’t depend upon where the lawsuit is filed.

More difficult to swallow, however, were several passages from the majority opinion and dissent by Justice Breyer that explained the role of the Supreme Court in interpreting statutes and how they are not searching for the best policy, but the correct statutory interpretation.


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