Harvard Law Review Harvard Law Review Harvard Law Review


Star Athletica, L.L.C. v. Varsity Brands, Inc.

Since 1870, copyright protection has been available for “works of the fine arts.”1×1. Mazer v. Stein, 347 U.S. 201, 209 (1954) (quoting Act of July 8, 1870, ch. 230, § 86, 16 Stat. 198, 212 (current version at 17 U.S.C. § 102 (2012))). Through the Copyright Act of 19762×2. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended in scattered sections of the U.S. Code). (the Act), Congress expanded the scope of copyright to include aesthetic features of useful objects.3×3. See 17 U.S.C. § 101. The design of a so-called “useful article”4×4. “A ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Id. Examples of useful articles include furniture, children’s toys, belt buckles, and lamps. See Barton R. Keyes, Note, Alive and Well: The (Still) Ongoing Debate Surrounding Conceptual Separability in American Copyright Law, 69 Ohio St. L.J. 109, 111, 114 (2008). may be copyrighted only if the object’s useful and aesthetic features are separable.5×5. See 17 U.S.C. § 101. Since the statute was enacted, between eight6×6. See Sonja Wolf Sahlsten, Note, I’m a Little Treepot: Conceptual Separability and Affording Copyright Protection to Useful Articles, 67 Fla. L. Rev. 941, 944 (2015). and ten7×7. Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 484–85, 487 (6th Cir. 2015). approaches for defining separability proliferated amongst scholars and lower courts, resulting in “inconsistent holdings.”8×8. Shira Perlmutter, Conceptual Separability and Copyright in the Designs of Useful Articles, 37 J. Copyright Soc’y U.S.A. 339, 340 (1990). Last Term, in Star Athletica, L.L.C. v. Varsity Brands, Inc.,9×9. 137 S. Ct. 1002 (2017). the Supreme Court clarified the separability test and held that the designs on a cheerleading uniform were separable from the uniform’s function as clothing and were copyrightable under the Act.10×10. Id. at 1016. While a much-needed clarification of this area of law, the opinion may not eliminate lower courts’ variations in separability analysis because it contradicts itself regarding the inherent separability of surface designs, does little more than restate the statute, and flinches from delving into the visual nature of the question.

Star Athletica (Star) and Varsity Brands (Varsity) were in the business of marketing and selling uniforms and gear for athletic teams, including cheerleading squads.11×11. Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422, at *1 (W.D. Tenn. Mar. 1, 2014). Varsity held copyright registrations for three of its cheerleading uniform designs as “2-dimensional artwork” and for two as “fabric design (artwork).”12×12. Id. at *2. When designing a uniform, Varsity’s employees usually drew two-dimensional images combining design elements.13×13. Id. at *1–2. Design features included “[]chevrons[], lines, curves, stripes, angles, [and] diagonals.” Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 471 (6th Cir. 2015). For images of the designs, see id. at 472–74. Customers chose among the “design concept[s]” in Varsity’s catalog and could select specific “shape[s], colors, and braiding for the uniform[s].”14×14. Varsity Brands, 799 F.3d at 471. After Star published a catalog of cheerleading uniforms with designs similar to Varsity’s copyrighted designs, Varsity sued, alleging infringement of their exclusive rights to reproduce, display, and distribute their copyrighted designs.15×15. Varsity Brands, 2014 WL 819422, at *2; see 17 U.S.C. § 106 (2012) (enumerating exclusive rights under the Act). Varsity also alleged trademark infringement under a provision of the Lanham Act, 15 U.S.C. § 1125(a) (2012), and claims under state law. Varsity Brands, 2014 WL 819422, at *9; see also Varsity Brands, Inc., 799 F.3d at 475 n.3. Varsity did not oppose Star’s motion for summary judgment with regard to its Lanham Act claims and did not appeal the district court’s dismissal of those claims. Id.

After discovery, both parties moved for summary judgment.16×16. See Varsity Brands, 2014 WL 819422, at *1. At issue was whether Varsity owned a valid copyright in the designs of the cheerleading uniforms and, in particular, whether the designs were copyrightable subject matter.17×17. See id. at *3; see also 17 U.S.C. §§ 101, 102(a)(5). To show copyright infringement, a plaintiff must establish “(1) ownership of a valid copyright, and (2) copying” of copyrightable material. Varsity Brands, 2014 WL 819422, at *3 (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Judge Cleland rejected Varsity’s argument that its copyright registration entitled the copyright to a presumption of validity, because the Copyright Office mechanically issues registrations. Id. at *3 n.2. Since the uniforms, as clothing, “possess[] both utilitarian and aesthetic value,” they were useful articles.18×18. Varsity Brands, 2014 WL 819422, at *3; see 17 U.S.C. § 101 (defining “useful article”). Consequently, their useful features — their “shape, style, cut, and dimensions” — could not be copyrighted.19×19. Varsity Brands, 2014 WL 819422, at *3. But, the design on the clothing’s fabric may receive copyright protection as a “pictorial, graphic, or sculptural [(PGS)] work only if, and only to the extent that,” the PGS and utilitarian aspects are separable.20×20. 17 U.S.C. § 101. Separability has two elements: separate identification and independent existence.21×21. See id. Judge Cleland reasoned that the former “implies conceptual severability” and the latter “physical separability.”22×22. Varsity Brands, 2014 WL 819422, at *7. He considered the relationship between the garments’ utilitarian function and aesthetic features: because the uniforms were no longer useful for “cloth[ing] the body in a way that evokes the concept of cheerleading” without the chevrons, lines, and colored panels, the features were not conceptually separable.23×23. Id. at *8. He also held that the designs were not physically separable, because taking them off of the fabric did “not remove their association as cheerleading uniforms.”24×24. Id. at *9. As a result, the designs were not copyrightable, and Star’s motion on the copyright infringement claims was granted.25×25. Id. Since Varsity’s Lanham Act claims were also dismissed, no federal claims remained, and Judge Cleland dismissed the state law claims. Id.

The Sixth Circuit reversed and remanded.26×26. Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 471 (6th Cir. 2015). Writing for the majority, Judge Moore27×27. Judge Moore was joined by Judge Guy. first held that the Sixth Circuit would defer to the Copyright Office’s determination that a design is copyrightable, as shown by a valid copyright registration.28×28. Varsity Brands, 799 F.3d at 479–80 (citing United States v. Mead Corp., 533 U.S. 218, 226–27 (2001); Skidmore v. Swift & Co., 323 U.S. 134 (1944)). Deference was due given the Office’s expertise and experience with useful article analyses, the training given to its employees in applying the statute, and the “sound legal reasoning” of its interpretation; thus, the district court had erred in not deferring to the Copyright Office’s determination.29×29. Id. at 480.

Judge Moore then moved on to the separability analysis. She reviewed the myriad approaches to separability followed by other circuits and proposed by scholars but declined to follow any one approach.30×30. See id. at 484–85, 487 (collecting tests). The court paid special attention to cases analyzing clothing. See id. at 485–87 (discussing Chosun Int’l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005), id. at 485–86, and Jovani Fashion, Ltd. v. Cinderella Divine, Inc., 808 F. Supp. 2d 542 (S.D.N.Y. 2011), aff’d sub nom. Jovani Fashion, Ltd. v. Fiesta Fashions, 500 F. App’x 42 (2d Cir. 2012), id. at 486). She then laid out a new method of separability analysis for the Sixth Circuit.31×31. Id. at 487–89. A court must first determine that the design in question is PGS; second, confirm that the object is a useful article; and third, pin down the article’s permissible “utilitarian aspects” under the Act.32×32. Id. at 487 (citing 17 U.S.C. § 101 (2012)). A court must ensure fourth, that the utilitarian and PGS features are separately identifiable and fifth, that the utilitarian and PGS aspects can exist independently of one another.33×33. See id. at 488. The final inquiry is guided by the “objectively necessary” and “design-process” approaches adopted by other courts.34×34. Id. (citing Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 931–32 (7th Cir. 2004); Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 419 (2d Cir. 1985)). Under the objectively necessary approach, if an article’s utilitarian features function without the PGS design, the design can exist independently.35×35. Id. (citing Carol Barnhart, 773 F.2d at 419). To inform this determination, courts can use the design-process approach, which considers evidence from the designer about “which components of the design are essential to the functionality of the useful article.”36×36. Id. (citing Pivot Point Int’l, 372 F.3d at 931–32).

Under this test, the uniform designs were copyrightable subject matter.37×37. Id. at 492. The stripes and chevrons were PGS and designs of useful articles, uniforms, which have the utilitarian functions of athletic wear.38×38. Id. at 489–90. Judge Moore rejected Star’s argument that the uniform “identif[ies] the wearer as a cheerleader” because the statute prevents courts from considering the conveying of information as a utilitarian function. Id. at 490; see also 17 U.S.C. § 101 (2012). They could be separately identified, since the uniform’s useful features were not affected by the absence of stripes and chevrons and the design and the clothing could appear “side by side.”39×39. Varsity Brands, 799 F.3d at 491 (quoting U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 924.2(B) (3d ed. 2014)). Finally, the independent existence requirement was met, in part because the designs could and did appear in other media, namely other types of clothing.40×40. Id. at 491–92. Since the decision restored a federal claim, the district court’s order dismissing Varsity’s state law claims was vacated. Id. at 494.

Judge McKeague dissented.41×41. Id. at 494 (McKeague, J., dissenting). He diverged from the majority on the third step, the useful functions that the court could permissibly consider.42×42. See id. at 495. Pointing out that the majority’s analysis depends on the level of generality at which a “function” is articulated, he would have defined it more narrowly43×43. Id. : “to clothe the body ‘in an attractive way for a special occasion.’”44×44. Id. (quoting Jovani Fashion, Ltd. v. Fiesta Fashions, 500 F. App’x 42, 44 (2d Cir. 2012)). Since the uniforms’ design rendered them more useful for that purpose, Judge McKeague believed that the utilitarian and aesthetic features were not separable.45×45. Id. at 496.

The Supreme Court affirmed.46×46. Star Athletica, 137 S. Ct. at 1007. Writing for the Court, Justice Thomas47×47. Justice Thomas was joined by Chief Justice Roberts and Justices Alito, Sotomayor, and Kagan. clarified the separability analysis, sweeping away the lower courts’ tests.48×48. See Star Athletica, 137 S. Ct. at 1010–16. As a threshold question, separability analysis was warranted because the statute provided that a “design of a useful article” can include “two-dimensional” features. Id. at 1009 (quoting 17 U.S.C. § 101 (2012)). The Court held that to receive copyright protection as a PGS work, an aesthetic feature of a useful article must be perceivable as a work separate from the useful article and be protectable as a PGS work “on its own or . . . in [another] tangible medium” if “imagined apart.”49×49. Id. at 1012. The Court stressed that copyright protection is not available when imagining the aesthetic features separately from the useful features “creat[es] a replica of [an] article in some other medium.” Id. at 1010. The first inquiry is simple, corresponding to the separately identifiable prong; the second, corresponding to the independent exis-tence prong, is “more difficult to satisfy.”50×50. Id. at 1010. The Court’s solution was supported by the plain text of section 101 and the Act as a whole, since sections 101, 106, and 113(a) provide that a PGS design receives copyright protection, no matter if it is fixed first as part of a useful article or as a stand-alone work.51×51. Id. at 1011–12; see also 17 U.S.C. §§ 101, 106, 113(a). Additionally, the approach was consistent with the history of the statute, because it did not overrule Mazer v. Stein,52×52. 347 U.S. 201 (1954). the opinion that informed the statute’s text.53×53. See Star Athletica, 137 S. Ct. at 1011–12. There, the Court held that a lamp base in the shape of a human dancer was copyrightable subject matter under the 1909 copyright regime.54×54. Mazer, 347 U.S. at 214. The Copyright Office implemented this holding through its regulations, and Congress lifted the language from those regulations in enacting the 1976 Act.55×55. Star Athletica, 137 S. Ct. at 1011–12. Since, in Mazer, the lamp’s usefulness without the statuette did not factor into the analysis, whether an article was functional without the design had no bearing on its copy-rightability in Star Athletica either.56×56. Id. at 1013–14.

The uniforms passed this test. Since the chevrons and lines were perceivable, the first prong was satisfied.57×57. Id. at 1012. The second prong was met because the chevrons and lines, “applied in another medium,” would be two-dimensional works of art that “would not replicate the uniform itself.”58×58. Id. The Court disposed of counterarguments and alternative tests raised by the parties as not grounded in the text of the statute.59×59. See id. at 1013–15 (rejecting proposed tests that required the useful article to be “equally” or “similarly useful” once the design is removed, id. at 1013–14, that considered the artist’s design process, id. at 1015, or that accounted for the article’s marketability without the design, id.). Additionally, any reliance on the distinction between physical and conceptual separability was misplaced, because the “text indicates” the exercise is conceptual.60×60. Id. at 1014. Finally, the Court concluded that its decision was not contrary to Congress’s intent to preclude copyright protection for clothing, because Varsity’s copyright was in only the uniform’s decorations, and not its “shape, cut, and physical dimensions.”61×61. Id. at 1015–16.

Justice Ginsburg concurred in the judgment.62×62. Id. at 1018 (Ginsburg, J., concurring in the judgment). Since Varsity’s copy-right registrations were not in the uniform, but in a fabric design reproduced on a uniform, she argued the copyright was not in a design of a useful article.63×63. Id. Thus, separability analysis was not necessary, and the designs were properly copyrighted.64×64. See id. Unlike the majority, see id. at 1009, Justice Ginsburg believed Varsity had argued this in its briefs. Id. at 1019 n.4 (Ginsburg, J., concurring in the judgment). Justice Breyer dissented.65×65. Id. at 1030 (Breyer, J., dissenting). Justice Breyer was joined by Justice Kennedy. Accepting the majority’s test, Justice Breyer disagreed with their framing and would have held that the designs could not be perceived separately.66×66. Id. at 1030–31. For Justice Breyer, the majority’s articulation suffered from vagueness: “virtually any industrial design” could satisfy the majority’s test and “be imagined as a ‘two- or three-dimensional work of art.’”67×67. Id. at 1033 (quoting id. at 1007, 1016 (majority opinion)). Justice Breyer also noted the decision would expand the reach of copyright law, in the fashion industry in particular, and argued it was the role of Congress, not the Court, to alter the law to such a degree. See id. at 1034–35. Justice Breyer turned to illustrations and examples to answer whether “the design picture[s] the useful article.”68×68. Id. at 1033; see id. at 1031–33. Applying the uniforms’ designs to, for example, a canvas creates a painting of a uniform; the designs “replicate the cut and style of the uniforms.”69×69. Id. at 1035. Thus, for the dissenters, they are not separable, and not protectable by copyright.

Scholars and courts have proposed and applied many approaches for answering the separability question, resulting in different tests in different circuits and for different articles.70×70. See Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 484–85 (6th Cir. 2015); Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. Cal. L. Rev. 247, 277–82 (1998). Star Athletica provides much needed focus by eliminating the competing tests and the judicial discretion and subjectivity they invited. However, the opinion replaced that confusion with confusion of its own. It explicitly denied that it expanded the reach of copyright law to surface decorations that met the other statutory requirements, but the opinion seems to do just that. Additionally, it lacks cues to guide lower courts in their analyses: it relied too heavily on plain text in an area begging for descriptive language and eschewed analogy in favor of reducing judicial discretion. Consequently, Star Athletica may not provide the clarity that the courts or industry need.

Since the enactment of the Act in 1976, courts and scholars have deployed many approaches to interpret separability’s separately identifiable and “capable of independent existence” elements.71×71. 17 U.S.C. § 101 (2012); see Varsity Brands, 799 F.3d at 484–85; Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422, at *3–4 (W.D. Tenn. Mar. 1, 2014). These approaches considered factors as disparate as how likely it is that “some significant segment of the community” would buy the PGS feature divorced from its useful purpose,72×72. Galiano v. Harrah’s Operating Co., 416 F.3d 411, 419 (5th Cir. 2005) (quoting 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.08[B][3] (2005)). how useful the object remains once separated from the PGS features,73×73. See Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 934 (7th Cir. 2004) (Kanne, J., dissenting). and how much the designer took functional and aesthetic considerations into account.74×74. Id. at 930–31 (majority opinion); Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1145 (2d Cir. 1987). The tests have been criticized for allowing judges’ artistic judgment to enter into the analysis,75×75. See, e.g., Keyes, supra note 4, at 135; Sahlsten, supra note 6, at 954 n.88, 959, 964 (criticizing the primary-subsidiary, temporal displacement, and equally-useful tests). contrary to the Court’s long-standing admonition that judges are not art critics,76×76. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251–52 (1903). and for looking for features or qualities, like marketability or the artist’s methods, that “reflect . . . a merger” between the aesthetic and useful features, “rather than looking for the merger itself” by determining whether it is in fact possible to imagine the design without the function, and vice versa.77×77. Darren Hudson Hick, Conceptual Problems of Conceptual Separability and the Non-Usefulness of the Useful Articles Distinction, 57 J. Copyright Soc’y U.S.A. 37, 49 (2009). Star Athletica knocks out these approaches and makes the landscape more predictable for parties, who need not guess which of eight to ten tests a court will follow.

The Court’s test improves on prior approaches by avoiding inquiry into the article’s function and minimizing opportunity for judicial discretion. First, Justice Thomas resolved the flaw Judge McKeague identified in the Sixth Circuit’s approach, that the copyrightability of the PGS feature would depend on how specifically the article’s utility is defined.78×78. See Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 496 (6th Cir. 2015) (McKeague, J., dissenting). There, the outcome turned on the fact that the uniform’s purpose was to cover the body rather than to cover the body for cheerleading.79×79. Id. By focusing on the design, rather than the article,80×80. See Star Athletica, 137 S. Ct. at 1012–13. However, it is worth noting that the statute’s separate identification and independent existence elements are not stand-alone but relative: the PGS feature must be “identified separately from” and “capable of existing independently of” the useful features. 17 U.S.C. § 101 (2012) (emphasis added). This language counsels against completely disregarding the article’s utilitarian aspects in the separability analysis. the Court sidestepped the difficulties the Sixth Circuit encountered in determining how much more or less useful the chevrons made the uniforms and minimized semantic and philosophic disagreements.81×81. See Star Athletica, 137 S. Ct. at 1012–13; Varsity Brands, 799 F.3d at 491.

Second, the Court’s analysis eliminates subjective aspects of the other separability tests. For example, the primary-subsidiary approach allowed judges to find separability when, in their artistic judgment, the aesthetic feature was primary.82×82. See Sahlsten, supra note 6, at 954 n.88. Thus, the court in Kieselstein-Cord v. Accessories by Pearl, Inc.83×83. 632 F.2d 989 (2d Cir. 1980). believed that the functionality of the belt buckles was subsidiary to their nature as body ornamentation and found separability.84×84. Id. at 993–94. Similarly, the design-process approach permitted the subjective intent of the artist, and the judge’s understanding of it, to control the analysis.85×85. See Hick, supra note 77, at 44–45. Reliance on testimony from designers could also encourage strategic behavior by sophisticated litigants designing objects to obtain copyright protection. Therefore, in Brandir International, Inc. v. Cascade Pacific Lumber Co.,86×86. 834 F.2d 1142 (2d Cir. 1987). the artist’s decision to adapt his sculpture into a more useful and functional bike rack sank the claim for separability.87×87. Id. at 1147–48. Overall, Star Athletica reduces opportunity for judicial discretion and could yield more predictable outcomes.

Nonetheless, this opinion may not eliminate variations in the application of separability analysis. First, the Court functionally expanded copyright protection to surface decorations while denying doing so. Justice Thomas rejected Varsity’s argument that surface designs are “inherently separable” as designs on a useful article, rather than designs of a useful article.88×88. Star Athletica, 137 S. Ct. at 1009 (quoting Brief for Respondents at 26, Star Athletica, 137 S. Ct. 1002 (No. 15-866)). However, the Court noted that other clothing bearing the design and a painting of the design would not “replicate” the uniform.89×89. Id. at 1012. Thus, the Court set a high bar for what would create a replica of an article and established a framework that ensures surface decorations will nearly always be separable. These dicta imply that the independently existing work can have the shape and look of the article,90×90. See id. at 1035–36 (Breyer, J., dissenting). evoke the same concepts,91×91. See Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422, at *9 (W.D. Tenn. Mar. 1, 2014). and even perform the same function and still be separable.92×92. See Star Athletica, 137 S. Ct. at 1012. And, the Court mentioned only one example that would fail this prong: a car, imagined as a three-dimensional cardboard model, would not receive copyright protection.93×93. Id. at 1010. The model would not be copyrightable because it would replicate the car and so would not be “capable of existing independently” as a PGS work. Id. (quoting 17 U.S.C. § 101 (2012)). This example does not explain when a useful article’s surface decoration will not be copyrightable, as it pertains to a three-dimensional object. The tension in this apparent contradiction could lead to inconsistent applications of Star Athletica.

Additionally, the Court may have invited various interpretations of the opinion by not providing more guidance on how the text of § 101 should be construed. The Court’s test does little more than restate the statute’s language. “[F]eatures that can be identified separately”94×94. 17 U.S.C. § 101. becomes “feature[s] [that] can be perceived as a . . . separate” work.95×95. Star Athletica, 137 S. Ct. at 1007. “[F]eatures that . . . are capable of existing independently”96×96. 17 U.S.C. § 101. becomes “feature[s] . . . [that] would qualify as a protectable . . . work.”97×97. Star Athletica, 137 S. Ct. at 1007. Paraphrases are ordinarily helpful, as they provide other ways of thinking through a question. But the number of approaches developed by lower courts renders it “obvious” that there was no settled way to understand the statute’s text, how it should be applied, or under what standard.98×98. Varsity Brands, Inc. v. Star Athletica, LLC, No. 10–2508, 2014 WL 819422, at *6 (W.D. Tenn. Mar. 1, 2014); see also Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 487 (6th Cir. 2015). A gloss on the text will likely not resolve those questions.99×99. By way of example, appellate courts in both Varsity Brands and Pivot Point International, Inc. v. Charlene Products, Inc., 372 F.3d 913 (7th Cir. 2004), began their analysis with the text of section 101. Varsity Brands, 799 F.3d at 487; Pivot Point Int’l, 372 F.3d at 920–21. Indeed, the district court knew that the difficulty was not in the text, but in determining the “proper standard to apply.”100×100. Varsity Brands, 2014 WL 819422, at *6; see also Keyes, supra note 4, at 115 (“The Copyright Act does not give courts much guidance in determining whether a work meets the separability requirement.”). The Sixth Circuit created an “approach” to the separability analysis, laying out “a series of questions . . . grounded in the text of the Copyright Act.”101×101. Varsity Brands, 799 F.3d at 487. It believed it would be most helpful to instruct courts on the precise questions. The Court does not offer such an approach.

The Court’s sparse use of analogies and description may also make application of the test more difficult. The majority considered only the text: the holding was grounded in the provision, the statute as a whole, and the history of the provision’s enactment.102×102. See Star Athletica, 137 S. Ct. at 1010–12. It relied on dictionaries rather than images.103×103. See id. at 1014. The application of the test was cursory, with only one paragraph explaining that the statute’s requirements were satisfied, followed by two analogies.104×104. See id. at 1012. The Court’s counterexample, of the cardboard model car, id. at 1010, is of dubious usefulness, because it is not clear for what PGS feature copyright protection is sought. In contrast, Justice Breyer’s dissent contemplated multiple scenarios to illustrate how his framing could be deployed across multiple fact patterns.105×105. See id. at 1031–33 (Breyer, J., dissenting). Additionally, both lower courts here evaluated the facts and reasoning of other courts,106×106. See Varsity Brands, 799 F.3d at 485–87; Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422, at *4–6 (W.D. Tenn. Mar. 1, 2014). and courts and scholars usually discuss examples in detail.107×107. See, e.g., Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 926–30 (7th Cir. 2004); Matthew C. Broaddus, Comment, Designers Should Strive to Create “Useless” Products: Using the “Useful Article” Doctrine to Avoid Separability Analysis, 51 S. Tex. L. Rev. 493, 496–97 (2009). Of course, the Supreme Court need not parse lower court decisions or defend its consistency with them.108×108. Cf. Blanchard v. Bergeron, 489 U.S. 87, 97 (1989) (Scalia, J., concurring in part and concurring in the judgment) (calling the majority’s “careful[] examin[ation]” of a Fifth Circuit opinion and three district court opinions a “role reversal”). Nonetheless, the Court could have recognized, from these many examples, that visual analyses and illustrative analogies to like and unlike objects are helpful in copyright law in general and separability analysis in particular, and adjusted its approach accordingly. Because useful articles are three-dimensional objects, and because, as Star Athletica illustrates, aesthetic and useful features can be difficult to distinguish, description of how a test would be applied across situations is an important feature of separability analysis. Had the Court discussed the visuals, it could have ensured a more predictable separability inquiry.

The Court’s decision not to engage in descriptive analysis may be an attempt to ensure that judges’ aesthetic preferences do not bleed into the separability test. This concern, which forms the basis of many critiques in this area, is valid given the principle of aesthetic neutrality, which is founded in the courts’ lack of expertise109×109. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251–52 (1903). and fears of judicial paternalism regarding what qualifies as art.110×110. See Yen, supra note 70, at 248–49. Any separability approach must balance the need for aesthetic neutrality with the need for an implementable standard. But here, aesthetic neutrality and textualist analysis are privileged at the expense of clarity. Even though the test minimizes judicial discretion, the Court turned a blind eye to the challenges facing lower courts.

The reasoning in Star Athletica is sound and reduces opportunities for courts to consider subjective factors. But the Court’s articulation of its ruling lacks clarity and detail and could create its own confusion. In announcing the separability test, the opinion did little more than paraphrase the statute, overlooking the lower courts’ various ways of implementing that language. Additional means of approaching the text, through analogy and description, were not put forward to clarify the statute’s meaning. And, contradictions between the different parts of the Court’s analysis complicate the final holding. Even here, the majority and dissent fundamentally agreed on the meaning of the statute’s text, but preferred different ways of framing the question the statute asked and came to two different conclusions as to the result. With all this considered, lower courts may formulate their own glosses and approaches to Star Athletica’s separability analysis, resulting in as much unpredictability in the landscape as preceded this opinion.