The Unimagined Consequences of Star Athletica’s ‘Imaginative Separability’ Test
Like other opinions in the IP arena, the Supreme Court’s decision in Star Athletica v. Varsity Brands has created a new legal rule with limited practical guidance that will inevitably lead to less predictability in an already-murky area of copyright law. Its new “imaginative separability” test for copyright eligibility for useful articles, such as footwear, clothing, and furniture, may be so easy that few designs will fail to qualify. Yet, ultimately, Star Athletica may have the unimagined consequence of making copyright protection less desirable for qualifying designs. For those who seek the benefits of the Court’s undeniable expansion of potential copyright protection for useful designs, a bit of caution may be the appropriate response.