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Last Wednesday the Supreme Court handed down a 6-2 opinion resolving a long mystifying test of when a feature of a useful article may be protected by copyright law. Hewing closely to the text of the Copyright Act, the opinion, authored by Justice Thomas, announced a new separability test holding that a feature incorporated into the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a 2 or 3 dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work if it were imagined separately from the useful article.
Professor Sandra Aistars of Antonin Scalia Law School at George Mason University explored the implications for copyright in general and industries beyond fashion.
- Prof. Sandra Aistars, Clinical Professor and Senior Scholar and Director of Copyright Research and Policy of CPIP, Antonin Scalia Law School, George Mason University