# Amicus Curiae Brief — Star Athletica, L. L.C. v. Varsity Brands, Inc., 136 S. Ct. 1823 (2016) (No. 15-866)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

Suprome Gout. US.

No. 15-866 FILED
SEP ? 1 2016

IN THE
OFFICE OF THE CLERK

Supreme Oot of the United States

STAR ATHLETICA, L.L.C.,

Petitioner,
v.

VARSITY BRANDS, INC., ET AL.,

tesporudents.
On Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit

BRIEF OF PROFESSORS JEANNIE SUK GERSEN
ANDC. SCOTT HEMPHILL AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS

JEANNIE SUK GERSEN SCOTT B. WILKENS

HARVARD LAW SCHOOL Counsel of Record

1563 Massachusetts Ave. MATTHEW S. HELLMAN

Cambridge, MA 02138 SAMUEL C. BIRNBAUM*
JENNER & BLOCK LLP

C. SCOTT HEMPHILL 1099 New York Ave. NW

NEW YORK UNIVERSITY Suite 900

SCHOOL OF LAW Washington, DC 20001

40 Washington Sq. South (202) 639-G000

New York, NY 10012 swilkens@jenner.com

“Adie tted outly in New York,
Practicing uader the supervision oj the
jetrtnership of Jenner & Black LLP.

Counsel for Anvci Curiae
September 21, 2016

i
QUESTION PRESENTED

What is the appropriate test to determine when a
feature of a useful article is protectable under § 101 of
the Copyright Act?

ii

TABLE OF CONTENTS
. ID cencccccnsscssenscsennsenniccnssccerenisseininn i
3 cecccectenccstcntnccncccccctennitsicintiniiaan iii
INTEREST OF AMICI CURIAE. . . l
SUMMARY OF ARGUMENT ccccccccccccsccccscccccscccsccsscesscceces ]
r AAA PA SIRI So AE 8 4

I. General Copyright Principles Apply
yA CE SL 4
II. The Term “Utilitarian Function” In
Section 101 Refers To Mechanical Or
Similarly Practical Utility, Not Every
RE ae cee eae 12

III. Expressive Features Are
Conceptually Separable Where They
Are Not Dictated By Utilitarian
—̃7⅛ Q— — ——— 19

IV. The Copyrightability Of Overall

iii
TABLE OF AUTHORITIES
Page(s)
CASES

Baby Buddies, Inc. v. Toys “R” Us, Inc.,
611 F.3d 1308 (11th Cir. 20100. . . . . 20

Baker v. Selden,
TE 6, 7, 10, 16, 17, 18

Bleistein v. Donaldson Lithographing
Co.,
eee 23

Carol Barnhart Inc. v. Economy Cover

Corp.,
77 F.2d 411 (2d Cir. 1985)... 21, 22

Chosun International, Inc. v. Chrisha
Creations, Ltd.,
Dee 20-21

Corley v. United States,
. 15

Fashion Originators’ Guild of America,
Inc. v. FTC,
r 29

Feist Publications, Inc. v. Rural

Telephone Service Co.,
r 28

es SS EE N es ee ,:CL.C

iv
Gay Toys, Inc. v. Buddy L Corp.,

522 F. Supp. 622 (E.D. Mich. 1981),
vacated, 703 F. 2d 970 (6th Cir. 1983) 14, 15

Gay Toys, Inc. v. Buddy L Corp.,
708 F.2d 970 (6th Cir. 1988)———.—————————— 15

Kieselstein-Cord v. Accessories by Pearl,
Inc.,
F.2d 909 (2d Cir. 19800———————. 21, 22

Kirtsaeng v. John Wiley & Sons, Inc.,
Le Se 19, 20, 29

Mazer v. Stein,
EE 7, 8, 9, 17, 25

Peel & Co., Inc. v. The Rug Market,
238 F. ad 391 (Sth Cir. 2001) ————.—.——— 17, 23

Pivot Point International, Inc. v.
Charlene Products, Inc.,
372 F.3d 913 (7th Cir. 2004) . 20, 21

Tilley v. TJX Companies,
345 F. ad 34 (Ist Cir. 200 3)— . —.—.—— 23

Tufenkian Import/Export Ventures, Inc.
v. Einstein Moomjy, Inc.,

BBB FBS 1ST CBS Car. — ——ẽ—ẽ 17, 23
Universal Furniture International, Inc.

„. Collezione Europa USA, Inc.,

618 F.3d 417 (4th Cir. 2010) (per

. —— 20

STATUTES AND RULES

_j § | 4, 5, 6, 12, 14, 15, 20, 26
og 48 — — „ 28
r 8. 9
. hb‚. 8
OTHER AUTHORITIES

Compendium of U.S. Copyright Office
Practices § 924.2(B) (3d ed. 2014) 29, 30

1 P. Goldstein, Copyright § 2.5.3 (3d ed.
EE ce 7,8

H.R. Rep. 94-1476 (1976), reprinted in
1976 U.S. C. C. A. N. 5859 8. 12, 14, 17, 20

C. Seott Hemphill & Jeannie Suk, The
Fashion Originators’ Guild of
America: Self-Help at the Edge of 1P
and Antitrust, in Intellectual
Property at the Edge: The Contested
Contours of IP 159 (Rochelle C.
Dreyfus & Jane C. Ginsburg eds..,

C. Seott Hemphill & Jeannie Suk, The
Law, Culture, and Economics of
Fashion, 61 STAN. L. REV. 1147 (2009) .................... 28

1 M. Nimmer & D. Nimmer, Copyright
—— — —ůůů ů— — 9, 10, 22

vi
Oxford English Dictionary (1933) 13
2 W Patry, Copyright (2016) 7, 8, 15, 21, 22
Webster’s Third New International
Dx ß ——————— 13

]

INTEREST OF AMICI CURIAE’

Amici are law professors at universities in the
United States and teach, research. and write
extensively on intellectual property law, including
copyright law. They have no personal interest in the
outcome of this case. Instead, they have a professional
interest in ensuring that the copyright law is
interpreted in a consistent, well-reasoned manner, with
close adherence to the statutory text and this Court’s
foundational copyright jurisprudence. Amici are:

Jeannie Suk Gersen
John H. Watson, Jr. Professor of Law
Harvard Law School

C. Seott Hemphill
Professor of Law
New York University School of Law

Institutional affiliations are given for identification
purposes only.
SUMMARY OF ARGUMENT

The question presented by this case goes to the
heart of copyright law and implicates the Copyright
Act’s guiding definitions as well as this Court’s
foundational precedents reaching back to the 1870s.

In the Copyright Act, Congress carefully addressed
the copyrightability of works of authorship that possess
utilitarian functions. In defining “useful article” in

' Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part and that no person other
than amici and their counsel made a monetary contribution to its
preparation or submission. Petitioner's and Respondents’ consent
to the filing of amicus briefs is filed with the Clerk.

2

section 101 of the Copyright Act, Congress made clear
that the design of a useful article, whether two-
dimensional or three-dimensional, is protectable as a
pictorial, graphic, or sculptural work, as long as its
pictorial, graphic, or sculptural features are separable
from its utilitarian aspects. This definition codified this
Court’s decisions in Baker v. Selden and Mazer v. Stein,
which, among other things, rejected any notion that
useful articles are categorically excluded from
copyright. Section 101 thus closely implements the
understanding that existed prior to the 1976 Copyright
Act. “Useful articles” do not stand apart from the rest
of copyright as a carved out exception to protectability,
but rather, like all other works, are subject to
copyright's general conditions of protectability.

In contrast, Petitioner and its amici seek to carve
out garment designs as a special category of works that
are unprotectable. In doing so, Petitioner and its amici
would undermine the coherence of copyright law and
would render unprotectable not only garment designs
but a far broader swath of works, including many that
have long been protected. That result is entirely
unwarranted.

Petitioner and its amici assert that the term
“utilitarian function” in section 101’s definition of
“useful article” means something extremely broad.
That interpretation cannot be correct, because it has
the practical effect of excluding useful articles from
copyright, a result that Baker v. Selden and Mazer v.
Stein squarely foreclose. Properly understood,
“utilitarian” in section 101 refers to mechanical or
similarly practical utility or usefulness. It does not
refer to usefulness for aesthetic, decorative, or cultural
purposes, such as making someone look attractive or

3
stylish. Those kinds of functions of a work are
paradigmatic non-utilitarian functions, even though it is
possible to characterize those functions of a work in
some very broad sense as “useful.” Treating a work's
decorative function as “utilitarian” would make almost
every pictorial, graphic, or sculptural work utilitarian
and thus unprotectable, because almost every such
work has that kind of decorative function. That
understanding of “utilitarian” would not only lead to
absurd results, but would also contradict the text and
structure of section 101 and make a hash of the statute.

The dispositive question in this case is whether the
pictorial, graphic, or sculptural features of a particular
piece of clothing are separable from its utilitarian
aspects. For the vast majority of clothing, such
features are not separable because, in general, most
clothing designs are _ dictated by utilitarian
considerations. However, to the extent that the design
may have pictorial, graphic, or sculptural features that
are separable from utilitarian aspects, then those
features are protectable. The instant amici propose
the following test for separability, which is consistent
with the statutory text and this Court’s precedents:
The design of a useful article is protectable if it is not
dictated by, or necessary to, utilitarian or functional
considerations. The Second Circuit has employed this
analytical approach in several important cases, and it is
the only test consistent with copyright law’s
longstanding principle that mere functional influences
do not disqualify a work from copyright protection.

1
ARGUMENT

1 General Copyright Principles Apply To Useful
Articles.

The area of copyright law dealing with “useful
articles” suffers from two common and related
misperceptions that run against the text of the
Copyright Act: that useful articles are categorically
excluded from copyright, and that the separability
analysis is categorically more hostile to three-
dimensional useful articles than to two-dimensional
useful articles. These categorical ways of reasoning
overcomplicate the Copyright Act, and have caused
many lower courts to proliferate confusing, varied, and
inconsistent tests that fail to follow the statute’s simple
logic.

In the Copyright Act, Congress carefully addressed
the copyrightability of works of authorship that possess
utilitarian functions. The Court should clarify that the
statute’s separability requirement for the protectability
of “useful articles,” whether those articles are two-
dimensional or three-dimensional, is a logical
manifestation of copyright’s longstanding general
approach to protectable works of authorship that
possess utilitarian functions.

Whether a two-dimensional or three-dimensional
“useful article” is protected by copyright is governed
by section 101 of the Copyright Act, which provides in
relevant part:

“Pictorial, graphic, and sculptural
works” include two-dimensional and
three-dimensional works of fine,
graphic, and applied art, photographs,
prints and art reproductions, maps,

5

globes, charts, diagrams, models, and
technical drawings, including
architectural plans. Such works shall
include works of artistic craftsmanship
insofar as their form but not their
mechanical or utilitarian aspects are
concerned; the design of a useful article,
as defined in this section, shall be
considered a pictorial, graphic, or
sculptural work only if, and only to the
extent that, such design incorporates
pictorial, graphic, or sculptural features
that can be identified separately from,
and are capable of existing
independently of, the utilitarian aspects
of the article.

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. An
article that is normally a part of a useful
article is considered a “useful article.”

17 U.S.C. § 101.

On its face, this language makes clear that “the
design of a useful article,” whether “two-dimensional”
or “three-dimensional,” is protectable as a “pictorial,
graphic, or sculptural work,” and explains the
circumstances in which it is protectable: “only if, and
only to the extent that, such design incorporates
pictorial, graphic, or sculptural features that can be
identified separately from, and are capable of existing

6

independently of, the utilitarian aspects of the article.”
17 U.S.C. § 101.

The Supreme Court’s landmark decision in Baker v.
Selden, 101 U.S. 99 (1879), made clear well over a
century ago that copyright may protect a work of
authorship that has a utilitarian function, while not
protecting the utilitarian function of that work. Thus,
there simply has never been a blanket exclusion from
copyright for works that have a utilitarian function. In
Baker v. Selden, there was no question that a book that
had the function of explaining a utilitarian system of
bookkeeping was protectable, while the actual
utilitarian system of bookkeeping explained in the book
was not protectable. 101 U.S. at 104 (“The use of the
art is a totally different thing from a publication of the
book explaining it. The copyright of a book on book-
keeping cannot secure the exclusive right to make, sell,
and use account-books prepared upon the plan set forth
in such book.”). As the Court explained:

But there is a clear distinction between
the book, as such, and the art which it is
intended to illustrate. The mere
statement of the proposition is so
evident, that it requires hardly any
argument to support it. The same
distinction may be predicated of every
other art as well as that of book-
keeping. A treatise on the composition
and use of medicines, be they old or
new; on the construction and use of
ploughs, or watches, or churns; or on the
mixture and application of colors for
painting or dyeing; or on the mode of
drawing lines to produce the effect of

7

perspective, —would be the subject of
copyright; but no one would contend
that the copyright of the treatise would
give the exclusive right to the art or
manufacture described therein.

Id. at 102.

Following Baker v. Selden, works that possess
utilitarian functions have long been understood to be
copyrightable, so long as they satisfy the requirements
specified by copyright law. The question then, has been
how to determine to what extent works that possess
utilitarian functions are copyrightable.

The 1976 Copyright Act, which set out the
requirement that to be protectable, a useful article’s
design must have pictorial, graphic, or sculptural
features that are separable from its utilitarian aspects,
is widely thought to have given effect to the Copyright
Office’s interpretation of pre-1976 law, including its
interpretation of this Court’s decision in Mazer v. Stein,
347 U.S. 201 (1954), which is discussed below. 1 P
Goldstein, Copyright § 2.5.3, p. 2:70 (3d ed. 2016
Supplement) (hereinafter “Goldstein”); 2 W. Patry,
Copyright § 3:134, p. 3-415 (2016) (hereinafter “Patry”)
(stating that the “useful article” language in section 101
“is an amalgam of the 1948 and 1959 [Copyright Office
regulations]”).

The 1976 Copyright Act’s legislative history makes
this explicit. The House Report indicates that the first
clause of section 101’s definition of “pictorial, graphic,
and sculptural works,” which includes “works of
artistic craftsmanship insofar as their form but not
their mechanical or utilitarian aspects are concerned,”
tracks the Copyright Office’s 1949 regulation relied

8

upon in Mazer. H.R. Rep. No. 94-1476, at 54 (1976)
(“House Report”), reprinted in 1976 U.S.C.C.A.N. 5659,

5667; 1 Goldstein § 2.5.3, p. 2:70.” The second clause,
requiring that the protected subject matter be
separable from the useful article’s utilitarian aspects,
tracks the Copyright Office’s 1959 regulation
interpreting Mazer. House Report, at 54-55; 1
Goldstein § 2.5.3, p. 2:70."

In Mazer v. Stein, the Court examined whether a
valid copyright existed in “statuettes of male and
female dancing figures. used as bases for table
lamps, with electric wiring, sockets and lamp shades
attached.” 347 U.S. at 202. In answering this question
in the affirmative, the Court rejected any notion that
useful articles—in Mazer v. Stein, electric lamp bases—
are categorically excluded from copyright. /d. at 214
(“The conclusion that the statues here in issue may be
copyrighted goes far to solve the question whether
their intended reproduction as lamp stands bars or
invalidates their registration.”); id. at 218 (“We find
nothing in the copyright statute to support the
argument that the intended use or use in industry of an

* That regulation, published at 37 C.F.R. § 202.8 (1949), provided
that “{wJorks of art includes works of artistic craftamanship, in
so far aa their form but not their mechanical or utilitarian aspects
are concerned, such as artistic jewelry, enamels, glassware, and
tapextries, as well as all works belonging to the fine arts, such as
paintings, drawings and sculpture. Mazer, 347 U.S. at 212-13.

That regulation, codified at 37 C.F.R. § 202.10(c) (1959), provided
that “{i]f the shape of a utilitarian article incorporates features,
such as artistic sculpture, carving, or pictorial representation,
which can be identified separately and are capable of existing
independently as a work of art,” those features are protected by
copyright. 2 Patry § 3:133, p. 3-402.

9

article eligible for copyright bars or invalidates its
registration. We do not read such a limitation into the
copyright law.”).

In reaching its holding, the Court analyzed the
development of copyright coverage from the founding
of the Republic through the early 1950s, and concluded
that “(t]he successive acts, the legislative history of the
1909 Act and the practice of the Copyright Office unite
to show that ‘works of art’ and ‘reproductions of works
of art’ are terms that were intended by Congress to

include the authority to copyright these statuettes.”
Mazer, 347 U.S. at 213-14. The Court relied heavily on
Baker v. Selden, “reaffirming the gist of the holding in
Baker and . . . the idea—first articulated in Baker
that useful works do not ipso facto become ineligible for
copyright protection.” 1 M. Nimmer & D. Nimmer,
Copyright § 2A.05[B][1], p. 2A-26 (2016) (hereinafter
“Nimmer”) (conceding that prior editions of the
Nimmer treatise had erroneously “interpreted Mazer
to nari ow the scope of the Court’s holding in Baker’).

In short, the 1976 Copyright Act relied heavily on
pre-1976 Copyright Office regulations, which in turn
relied heavily on Mazer v. Stein and Baker v. Selden.
Section 101’s specification of the circumstances under
which “the design of a useful article” is protectable
should thus be understood as a careful codification of
Baker v. Selden’s conclusion: that the protection of a
particular copyrightable work of authorship does not

Indeed, the Court stated that “[aJs a standard we can hardly do
better than the words of the present [1949] Regulation, naming the
things that appertain to the arts.” 347 U.S. at 214 (citation
omitted). For the text of that regulation, published at 37 C.F.R.
§ 202.8 (1949), see supra note 2.

10

also extend to the utilitarian function of that very work.
Baker, 101 U.S. at 102, 104; 1 Nimmer, § 2A.06, p. 2A-
27 - 2A-28 (“much of the Court’s holding in Baker v.
Selden has since been codified in the current Act”).
Some assume that section 101 somehow struck a death
blow to the protectability of useful articles, see
Petitioner’s Brief (“Pet. Br.”) at 24, but that is
incorrect. Section 101 instead indicates the features of
a useful article’s design that are protectable, and in so
doing, closely implements the understanding that
existed prior to the 1976 Act, of copyright in works of
authorship that possess a utilitarian function.

In light of the foregoing, it is also incorrect to think
that the term “utilitarian function” in section 101’s
definition of “useful article’ means something
extremely broad and different from the very utilitarian
function that Baker v. Selden and Mazer v. Stein meant
to exclude from protectability in an otherwise
copyrightable work of authorship. £.g., Pet. Br. at 22,
38-39, 44-45 (defining utilitarian to include all of an
article’s “inherent, essential, or natural functions”;
ſeſven the slightest utilitarian function results in no
copyright for the feature”); Brief of Professors
Christopher Buccafusco and Jeanne Fromer as Amici
Curiae in Support of Petitioner (hereinafter “Profs.
Buccafusco & Fromer Amicus Br.”) at 11 (defining
utilitarian to include any “designs or aspects of designs
.. . whose value is dependent on their effect on other
objects”; concluding under this very broad definition
that “[tlo the extent that aspects of garment design
affect the way in which the wearer is perceived, they
are utilitarian” (emphasis in original)). Interpreting
“utilitarian” in such an expansive fashion has the
practical effect of excluding “useful articles” from

1]

copyright, a result that Baker v. Selden and Mazer v.
Stein squarely foreclose. To the contrary, copyright
protects a design of a useful article to the extent that
its pictorial, graphic, and sculptural features can be
separated from its utilitarian aspects.

In using the term “utilitarian aspects of the article,”
section 101 means the same thing in the context of
“useful articles” that it means in any other copyright
context involving works of authorship that also have a
utilitarian function. In other words, “useful articles” do
not stand apart from the rest of copyright as a carved
out exception to protectability, but rather, like all other
works, are subject to copyright’s general conditions of
protectability. Thus, if Baker v. Selden is understood
to mean that utilitarian aspects of a work of authorship
are not protectable, then similarly, in the subset of
works of authorship that are considered “useful
articles,” utilitarian aspects of such useful articles are
not protectable, but their pictorial, graphic, and
sculptural features are.

As this case makes plain, the question of the
separability of a useful article’s utilitarian aspects from
its pictorial, graphic, and sculptural features has led
courts, litigants, amici, and commentators to adopt a
dizzying array of standards and tests for separability.
Brief of the Intellectual Property Law Association of
Chicago as Amicus Curiae in Support of Neither Party
at 8-11 (describing eleven different separability tests);
Brief of Amicus Curiae New York Intellectual
Property Law Association in Support of Neither Party
at 13-17 (describing ten different separability tests).
Petitioner’s own proposed test includes four distinct
steps and would cause a host of problems, discussed in
Part III infra. Pet. Br. at 38-39. These many different

12

approaches to separability overcomplicate a simple
statutory scheme. As this brief will explain, the proper
test for “separability” for two-dimensional and three-
dimensional works flows from and must respect
copyright law’s foundational principle that functional
influences do not disqualify a work from copyright
protection. The proper test for separability, set forth in
Part III infra, therefore relies on the concept of
conceptual separability, which is endorsed in the
legislative history to the 1976 Copyright Act. See
House Report, at 55.

II. The Term “Utilitarian Function” In Section
101 Refers To Mechanical Or Similarly
Practical Utility, Not Every Possible Benefit.

“Utilitarian” in section 101 refers to mechanical or
similarly practical utility or usefulness. It does not
refer to usefulness for aesthetic, decorative, or cultural
purposes. The statutory text expressly distinguishes
the “form” or other aesthetic aspects of a work] of
artistic craftsmanship” from the work’s “mechanical or
utilitarian aspects.” 17 U.S.C. § 101 (emphasis added).

Thus, for example, “utilitarian” does not mean
usefulness for making something or someone look
attractive or beautiful, or showing that they are stylish.
A painting may be useful for making a room look
beautiful, or communicating that the owner is an
admirer of abstract expressionism, but that does not
make the painting “utilitarian.” Just the opposite is
true. Those kinds of functions of a work are
paradigmatic non-utilitarian functions, even though it is
possible to characterize those functions of the work as
“useful.”

13

Contemporaneous definitions of “utilitarian”
confirm that Congress was not referring to a work’s
aesthetic, decorative, or cultural purposes. Webster's
Third New International Dictionary 2525 (1966)
(defining “utilitarian” as “characterized by or aiming at
utility as distinguished from beauty or ornament;”
defining “utility” as “the quality or state of being
useful” or “something useful or designed primarily for
use”); 11 Oxford English Dictionary 484 (1933) (defining
“utilitarian” as “[o}f or pertaining to utility; relating to
mere material interests,” lin quasi-depreciative use:
Having regard to mere utility rather than beauty,
amenity, etc.,” and “preferring mere utility to beauty or
amenity;” and defining “utility” as “[tJhe fact,
character, or quality of being useful or serviceable”).

Along these same lines, clothing’s usefulness in
decorating or flattering a person’s appearance does not
make that aspect of the clothing utilitarian or useful in
the practical, mechanical sense that the Copyright Act
is concerned with. The useful aspect of clothing in
practical terms is its physical utility in providing
covering for the body or keeping the body warm or
cool. Similarly, the utilitarian function of a chair is
holding up a sitting person’s body. That the chair
accentuates its surroundings may make the chair
aesthetically useful for someone who takes pride in the
beauty of his home. But that does not make the chair’s
aesthetic appearance a utilitarian function of the chair.

Indeed, treating a work’s decorative function as
“atilitarian” would make almost every pictorial,
graphic, or sculptural work utilitarian, because almost
every such work has that kind of decorative function.
An impressionist painting of a garden would be
utilitarian and unprotectable because it conveys to

14

others the owner's love of gardens and flowers, or of
the impressionist style. A chair with a nineteenth
century English carving on its back would be utilitarian
and unprotectable because it enhances the appearance
of a Victorian-era house. Cf. House Report, at 55
(offering as an example of a protectable design “a
carving on the back of a chair”).

That cannot be right, as it would contradict the text
and structure of section 101. In section 101, Congress
clearly intended the word “utilitarian” as a limitation
on, not a broadening of, the works and aspects of works
that are not copyrightable. First, section 101 specifies
that “[plictorial, graphic, and sculptural works” include
“works of artistic craftsmanship” that have
“mechanical or utilitarian aspects” as distinguished
from their “form” or other artistic features. 17 U.S.C.
$101 (emphasis added). Petitioner’s definition of
“utilitarian” eliminates that distinction. Second, section
101 draws a distinction between “pictorial, graphic, or
sculptural work[s]” that are “useful articles” from those
that are not. /d. “{Plictorial, graphic, or sculptural
works” that are “useful articles . . . hav[e] an intrinsic
utilitarian function that is not merely to portray the
appearance of the article or to convey information.” /d.
Petitioner’s definition of “utilitarian” would break down
this distinction too and make virtually all pictorial,
graphic, or sculptural works useful articles.”

7.

The absurd consequences from such a broad definition of
utilitarian are readily apparent in the case of Gay Toys, Inc. v.
Buddy L Corp., 522 F Supp. 622 (E.D. Mich. 1981), vacated, 703
F.2d 970 (6th Cir. 1983). There, the district court held a toy
airplane was a non-copyrightable useful article because it
“possesses utilitarian and functional characteristics in that it
permits a child to dream and to let his or her imagination soar.”

15

Third, with respect to “useful articles,” the statute’s
separability test is premised on the notion that at least
in some cases, “pictorial, graphic, or sculptural
features” are separate and distinct from “utilitarian
aspects.” 17 U.S.C. § 101. Again, Petitioner’s definition
of utilitarian would eliminate this distinction, rendering
superfluous the statutory command that courts must
assess the non-utilitarian aspects of useful articles to
determine if they are separable from the utilitarian
aspects. See Corley v. United States, 556 U.S. 303, 314
(2009) (“A statute should be construed so that effect is
given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.”)
(quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).

It would make a hash of the statute to define
utilitarian so broadly that it swallows every feature of a
work. Yet that is how Petitioner and Petitioner’s amici
contend that “utilitarian” should be understood: that it
knows no bounds. See Pet. Br. at 32 (defining
utilitarian with respect to a prom dress to include
causſ ing] an observer to perceive that the wearer is
attending the prom, draw attention to certain parts of
the wearer's body and not others, and generally create
a slimming effect”); Profs. Buccafusco & Fromer

522 F. Supp. at 625. The Sixth Circuit reversed, explaining that “a
toy airplane is to be played with and enjoyed, but a painting of an
airplane, which is copyrightable, is to be looked at and enjoyed.
Other than the portrayal of a real airplane, a toy airplane, like a
painting, has no intrinsic utilitarian function.” Gay Toys, Inc. v.
Buddy L Corp., 703 F.2d 970, 972 (6th Cir. 1983). See also 2 Patry
§ 3:149, pp. 3-477 3-478 (“Toys and other playthings are not
useful articles despite the purpose of stimulating children’s (or
adults’) imaginations, since such intent is not an intrinsic
utilitarian purpose within the meaning of the statute.” (footnotes
omitted)).

16

Amicus Br. at 4 (defining “the full scope of what is
utilitarian” to include “expressive features of clothing
designs” that affeetſ] how the wearer is perceived”), at
8 (stating that garment design has utility “beyond
standard mechanical or technological utility,” in that it
“is intended to make the wearer look attractive”
(emphasis in original)), at 11 (defining any types of
“designs or aspects of designs . whose value is
dependent on their effect on other objects,” as
utilitarian; based on this broad understanding of
utilitarian, defining the utility of clothing to include not
only “the mechanical utility related to use, warmth, and
modesty,” but also “design features that influence the
wearer's appearance” (emphasis in original)). That
cannot be what Congress intended, as it would conflict
with section 101’s statutory structure and text as
described above.

This Court’s decisions in Baker v. Selden and Mazer
v. Stein, which are codified in section 101, leave no
doubt on this point. In Baker v. Selden, the Court
explained that the division between utilitarian and
expressive functions is an articulation of the border
between copyright and patent. See Baker, 101 U.S. at
102. The bookkeeping system was not copyrightable
because it fell into the category of “the rules and
methods of useful art that] have their final end in
application and use.” /d. at 104. In other words, the
bookkeeping system was a practical activity; its value
was in the tangible benefits it could bring about, not in
the “pleasure in [its] contemplation.” Id. By contrast,
the text of the book was protectable because the unique
arrangement of words and pictures describing the
bookkeeping system was expressive—as the Court put
it, it was the kind of object whose “essence consists

17

only in lits] statement.” Id. Thus, the book was
expressive, artistic, and copyrightable, notwithstanding
its “practical” subject matter, or the fact that it was
“useful” insofar as it served the useful function of
teaching readers how to perform bookkeeping.

In Mazer, there was no question that the lamp base
statuette at issue had practical, utilitarian elements
that were not copyrightable: it supported a light bulb,
its attendant wiring, and a lampshade. See Mazer, 347
U.S. at 202. But if “utilitarian” were given the broad
meaning that Petitioner and Petitioner's amici
advance, the statuette’s creative and expressive
elements could also be construed as utilitarian. For
example, because the statuette was of a Balinese
dancing figure, the lamp could be portrayed as “useful”
for conveying to others the owner’s appreciation for
Balinese culture or for improving the appearance of the
room. In holding that the statuette was copyrightable,
the Court rejected any such sweeping meaning of
“utilitarian.”

Rugs and wallpaper are examples of two-
dimensional useful articles that have uncontroversially
copyrightable elements. A rug has the intrinsic
utilitarian function of covering a floor and providing
something soft for people to walk on. Wallpaper has
the intrinsic utilitarian function of covering up walls.
Nevertheless, rug and wallpaper designs are
copyrightable in that they are decorative, and their
pictorial and graphic features are understood to be
separable from their utilitarian aspects. See Tufenkian
Import/Export Ventures, Inc. v. Einstein Moomjy.
Inc., 338 F.3d 127, 137 (2d Cir. 2003); Peel & Co., Inc. v.
The Rug Market, 238 F.3d 391, 399 (5th Cir. 2001);
House Report, at 55 (“A two-dimensional painting,

18

drawing, or graphic work is still capable of being
identified as such when it is printed on or applied to
utilitarian articles such as textile fabrics, wallpaper,
containers, and the like.”). Conversely, what is not
protectable is the utilitarian function of covering a floor
or a wall. If a rug had a heating function or were soft or
absorbent, or a wallpaper had a sound-absorbing
function or were crayon-proof, those utilitarian
functions would not be copyrightable, but they would
not exclude from protectability the picture or graphic
design embossed on that rug or wallpaper.

Rugs and wallpaper are examples of two-
dimensional works, but the analysis is no different for
three-dimensional works. The fact that a work is three-
dimensional does not put the work in some different
exceptional category from copyrightable works or from
two-dimensional useful articles, and require a different
kind of analysis. The same basic question that applies
to two-dimensional useful articles like rugs and
wallpaper applies as well to three-dimensional useful
articles like clothing, cars, and furniture. That basic
question, mandated by the statute, is the extent to
which the useful article’s pictorial, graphic, or
sculptural features are separable from its utilitarian
aspects.

A piece of clothing, a three-dimensional useful
article, has the utilitarian function of physically
covering the body, keeping someone warm or cool,
enhancing physical comfort, or moving with the body
during physical activity. Those aspects of a piece of
clothing “have their final end in application and use.”
Baker, 101 U.S. at 104. A piece of clothing also has
aesthetic, decorative, or cultural functions, such as
making the wearer look attractive, flattering the body,

19

or signaling that one is stylish, wealthy, or fits in.
These are not utilitarian functions of clothing, and
neither is clothing’s ability to convey one’s identity as a
trend-setter, a fashionista, or a cheerleader. Just as
one may buy and display a particular painting to convey
one’s identity as a minimalist, one may buy a particular
dress to convey that same identity. That the painting
and the dress serve that cultural function does not
make that function—or the painting or dress—
utilitarian.
III. Expressive Features Are Conceptually
Separable Where They Are Not Dictated By
Utilitarian Function.

The dispositive question in this case is whether—
just as with the design of a rug or wallpaper—the
pictorial, graphic, or sculptural features of a particular
piece of clothing are separable from its utilitarian
aspects. For the vast majority of clothing, such
features are not separable because, in general, most
clothing designs are _ dictated by utilitarian
considerations. However, to the extent that the design
may have pictorial, graphic, or sculptural features that
are separable from utilitarian aspects, then those
features are protectable, as long as they satisfy
copyright’s standard requirements, such as originality.

This Court in Kirtsaeng v. John Wiley & Sons, Inc.,
133 S. Ct. 1351 (2013) took as a given the existence of
design copyright in apparel. In the course of explaining
the consequences of denying first sale status to copies
made abroad and imported into the United States, the
Court enumerated three examples of imported goods
protected by copyright: “a video game made in Japan, a
film made in Germany, or a dress (with a design

20

copyright) made in China.” 133 S. Ct. at 1360. The only
possible way of reading this sentence is as recognition
that some dresses, which clearly are useful articles,
have copyrightable designs or design features. That
conclusion, moreover, is fully consistent with the
Copyright Act’s specification of the extent to which
designs of useful articles are protectable: when their
pictorial, graphic, or sculptural features—in other
words, the decorative or artistic aspects of their
designs—are separable from their utilitarian aspects.
Section 101’s legislative history confirms that
“separable” means physically or conceptually
separable. House Report, at 55 (“Unless the shape of
an automobile, airplane, ladies’ dress, food processor,
television set, or any other industrial product contains
some element that, physically or conceptually, can be
identified as separable from the utilitarian aspects of
that article, the design would not be copyrighted under
the bill.”) (emphasis added). Numerous courts of
appeals, including the Sixth Circuit in the case at bar,
have confirmed that both physical and conceptual
separability can be relevant considerations when
determining whether a design’s “pictorial, graphic, or
sculptural features . can be identified separately
from, and are capable of existing independently of, the
utilitarian aspects of the article.” 17 U.S.C. § 101; e. g.
Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d
468, 483 (6th Cir. 2015); Pivot Point Int'l, Inc. v.
Charlene Prods., Inc., 372 F.3d 913, 917 (7th Cir. 2004);
Universal Furniture Int'l, Inc. v. Collezione Europa
USA, Inc., 618 F.3d 417, 433-34 (4th Cir. 2010) (per
curiam); Baby Buddies, Inc. v. Toys “R” Us, Inc., 611
F.3d 1308, 1315-16 (11th Cir. 2010); Chosun Int'l, Inc. v.

21

Chrisha Creations, Ltd., 413 F.3d 324, 328 (2d Cir.
2005).

Physical separability means, for example, that an
appliqué sewn onto a sweater can be removed from
(e. g., snipped off of) the sweater and hence is
protectable. See Pivot Point, 372 F.3d at 917. By
contrast, conceptual separability means, for example,
that the decorative features of a costume may be
protectable if they are conceptually distinct from the
costume’s function as clothing even though they cannot
be removed from the clothing. See Chosun Int'l, 413
F. 3d at 329.

The instant amici propose the following test for
separability: The design of a useful article is
protectable if it is not dictated by, or necessary to,
utilitarian or functional considerations. However, a
design may be protectable even if it is influenced by
functional considerations. See 2 Patry § 3:146, p. 3-475
(“If the pictorial, graphic, or sculptural features [of a
useful article] are not dictated by the form or function
of the utilitarian aspects of the useful article, they can
be said to be capable of existing independently of those
aspects and hence are protectable.”) (emphasis in
original).

The Second Circuit employed this analytical
approach in Kieselstein-Cord v. Accessories by Pearl,
Inc., 632 F.2d 989 (2d Cir. 1980) and Carol Barnhart
Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.
1985). In Kieselstein-Cord, the court considered the
protectability of a series of decorative, ornamental belt
buckles. 632 F.2d at 990-91. The court concluded that
the belt buckles contained “conceptually separable
sculptural elements,” and thus were protectable,

22

because the buckles’ ornamented surfaces were distinct
from the buckles’ utilitarian function of supporting
pants. /d. at 993. Put differently, “the ornamented
surfaces of the buckles” were protectable because they
“were not in any respect required by their utilitarian
functions.” Carol Barnhart, 773 F.2d at 419 (emphasis
added). Even if the belt buckles in Kieselstein-Cord
did not have decorative elements on their surface, they
still would have served their utilitarian function. Jd. In
Carol Barnhart, the court applied this same test and
reached the opposite conclusion in a case involving
mannequin-like forms designed to display clothing. /d.
at 412-13. The forms at issue in Carol Barnhart,
according to the Second Circuit, were unprotectable
because their aesthetic components (life-like depictions
of the human body) were necessary to the performance
of the forms’ utilitarian function—the display of
clothing on a human torso. /d. at 419.

The test that amici advocate and that the Second
Circuit has applied is the only test consistent with
copyright law’s longstanding principle that functional
influences do not disqualify a work from copyright
protection. See Part I supra. That articles containing
utilitarian influences can be copyrighted was the very
point of Mazer v. Stein and Baker v. Selden. Indeed, as
noted above, Mazer v. Stein “reaffirm[ed] the gist of
the holding in Baker and . . . the idea first articulated
in Baker—that useful works do not ipso facto become
ineligible for copyright protection.” 1 Nimmer
§ 2A.05[B}[1], p. 2A-26; see also 2 Patry § 3:146, p. 3-475
(noting that the same type of test that amici propose is
based on “a plain reading of the statute and one that
takes full account of the statutory language. It is also

23

quite easy to apply, a distinct virtue.) Moreover, the
test keeps courts out of the business of making
judgments about aesthetic value, a role for which
courts are ill-suited. See Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239, 251 (1903) (urging
courts to avoid the “dangerous undertaking” of making
judgments about aesthetic worth, “outside of the
narrowest and most obvious limits.”).

Importantly, the test amici advocate is consistent
with the well-established rule that the designs of two-
dimensional useful articles, such as rugs, wallpaper, and
fabric, are copyrightable even though they are
influenced by functional considerations. See Tufenkian,
338 F.3d at 137; Peel & Co., 238 F.3d at 399; Tilley v.
TJX Cos., 345 F.3d 34, 36 (Ist Cir. 2003). That is
because a rug’s design is not dictated by utilitarian
considerations, such as the need for it to lay flat on the
floor and feel soft to one’s feet. The same well-
established rule applies to three-dimensional useful
articles such as apparel, and amici’s test applies to
three-dimensional useful articles just as it does to two-
dimensional ones. The pictorial, graphic, and sculptural
design features of three-dimensional useful articles are
protectable to the extent that they are not dictated by
or necessary to the article’s utilitarian function. In the

6 242 22

By contrast, the test that Petitioner’s amici intellectual property
professors suggest would deny protection whenever the claimed
set of features is itself a useful article. Brief Amicus Curiae on
Behalf of Intellectual Property Professors in Support of Petitioner
(hereinafter “Intellectual Prop. Profs. Amicus Br.“), at & 10.
Among other problems, their test would deny protection even to
the belt buckle designs in Kieselstein-Cord, id. at 23-24 (asserting
that Kiexelstein-Cord was wrongly decided), despite their being
merely ornamental and unnecessary to the function of the buckles.

24

case of clothing, this means that the pictorial, graphic,
and sculptural design features of a dress are
protectable as long as they are not dictated by the
utilitarian functions of physically covering the body,
keeping the body warm or cool, enhancing physical
comfort, or moving with the body during physical
activity.

In stark contrast to this straightforward analytical
approach, Petitioner's test for separability is
unworkable and would create a host of problems.
Petitioner proposes first that a court assessing
protectability must “identify all of [an] article’s
inherent, essential, or natural functions.” Pet. Br. at 38
(emphasis in original). “{I}f an article has a useful
function that is inherent, essential, or natural to what
the article is, then it is a useful article.” /d. at 29-30; see
also id, at 38. This approach makes the scope of “useful
articles” under section 101 incredibly broad, and would
sweep in many objects that plainly are not “useful
articles” within the plain meaning of the statute, such
as paintings that stimulate deep emotions in the viewer
or that create a certain ambiance or mood in the room
where they are displayed.

If an object is a useful article under Petitioner's
test—as most objects would be—that is essentially
outcome dete. -ninative as to whether the object or any
of its features is copyrightable. It would be virtually
impossible for the features of any useful article to pass
Petitioner’s test for copyright protection, first because
Petitioner applies a “presumption” against copyright
protection to all useful articles—a presumption

25

Petitioner creates from whole cloth - and second
because Petitioner applies a highly regimented
separability analysis that is skewed in every respect
against copyright protection. Pet. Br. at 27-36, 38-39.
For example, Petitioner requires the feature at issue to
be “purely artistic” without any “utilitarian aspects.”
Id. at 38. “If the feature is even slightly utilitarian, it
cannot be copyrighted.” /d. at 39 (emphasis added).

Petitioner’s amici’s approach to separability is also
unworkable. As discussed in Part II supra, their
definition of “utilitarian” is incredibly broad, such that
any feature of a useful article would count as utilitarian,
no matter how artistic or decorative. Under this
approach, virtually all design features that are
expressive are simultaneously utilitarian, and are
therefore unprotectable: Where, however, the
components of a design that are claimed as the
expressive pictorial, graphic, or sculptural features
also, simultaneously, function as utilitarian aspects of
the article they could never maintain separable
identification and existence.” Profs. Buccafusco &
Fromer Amicus Br. at 30.

The approach proposed by Petitioner and
Petitioner’s amici is not what Congress could have

intended in requiring courts to inquire into the
separability of a work’s pictorial, graphic, or sculptural
features from its utilitarian aspects. Under Petitioner’s

‘ Congress's intent in setting forth the separability test in section
101 was to codify this Court’s holding in Mazer, which made no

reference to any presumption against copyright protection for
useful articles. See Part I supra; Mazer, 347 U.S. at 210-17.

26

and Petitioner’s amici’s approach, the decorative
character of a useful article would be considered a
useful function, which would render the two
dimensional designs of rugs, wallpaper, and fabric no
longer protectable. Once decoration is defined as
utilitarian, the rug’s decorative features cannot be
separated from its utilitarian aspects. Given that this
result contradicts longstanding precedent and the
legislative history cited above, Petitioner’s and
Petitioner’s amici’s approach cannot be correct.

Fundamentally, nothing in the statute’s text
suggests that separability should apply to the designs
of three-dimensional useful articles differently than it
applies to the designs of two-dimensional articles.
Indeed, the statute specifically suggests the opposite:
that three-dimensional and two-dimensional useful
articles are protectable under the same conditions. See
17 U.S.C. § 101. Thus, the pictorial, graphic, or
sculptural features of clothing design are to be treated
just like the pictorial, graphic, or sculptural features of
fabric design: if they are dictated by utilitarian
function, they are not copyrightable, but if they are not
dictated by utilitarian function, then they are
copyrightable.

Applying this test to the cheerleading uniforms at
issue here, the question is whether the particular
selection and arrangement of chevrons and stripes on
the uniforms is dictated by or necessary to the
utilitarian function of a cheerleading uniform.” The

" Petitioner errs in suggesting that the issue before the Court is
whether a stripe or a chevron printed onto clothing is
copyrightable. See Pet. Br. at 44-45. To the contrary, the issue
before the Court is whether the particular arrangement of

27

utilitarian function is to clothe the wearer, move with
the body for purposes of athletic activity, keep the body
comfortable and cool, wick away moisture, and the like.
Insofar as the uniform serves to identify the wearer as
a cheerleader, or serves to make the wearer look
attractive, that is not a utilitarian function; it is an
aesthetic or cultural function. See Part II supra. The
design of chevrons and stripes on the uniform is not
dictated by or necessary to the uniform’s utilitarian
function. For example, if the chevrons or stripes were
absent, were arranged differently, or were replaced by
a polka dot design, the uniform would still serve its
utilitarian function.”

Although Petitioner suggests that Respondents’
designs are not very creative, Pet. Br. at 48-49, that
criticism is not relevant to whether the designs have
pictorial, graphic, or sculptural elements that are
separable from their utilitarian aspects. On remand,

chevrons and stripes that appear on the cheerleading uniforms is
copyrightable. Brief for the Respondents in Opposition to
Certiorari at 1-3. Respondents have not argued that the genera!
concept of a chevron or a stripe is copyrightable.

8 Notably, Petitioners amici intellectual property professors
advocate a separability test that favors Respondents when applied
to the cheerleading uniforms at issue in this case. Petitioner's
amici claim that under their test, the “aesthetic elements” of a
cheerleading uniform are unprotectable because they “exist only
as part of a cheerleader uniform. There is nothing to extract; the
claimant claims the design of a useful article.” Intellectual Prop.
Profs. Amicus Br. at 17. That, however, is plainly wrong. If
designs on the surface of wallpaper can be “extracted” under
Petitioner’s amici x separability test—as Petitioner's amici claim,
id. at 8, 17—then so can designs on the surface of clothing,
including cheerleading uniforms.

*

28

the court can decide whether Respondents’ designs are
not sufficiently original and not copyrightable for that
reason. See 17 U.S.C. § 102(a); Feist Publ ns, Inc. v.
Rural Tel. Serv. Co., 449 U.S. 340, 345 (1991).
Petitioners are also incorrect in their assessment of

the policy implications of their preferred rule. Pet. Br.
at 57. Far from suppressing innovation, copyright
protection for separable expressive features
encourages innovation. As the instant amici have
explained in their academic work:

Mass copyists undermine the market for

the copied good. Copies reduce the

profitability of originals, thus reducing

the prospective incentive to develop

new designs in the first place. The

predicted result, a reduced amount of

innovation, is familiar from copying in

other creative industries, such as file

sharing of copyrighted music and films.

C. Seott Hemphill & Jeannie Suk, The Law, Culture,
and Economics of Fashion, 61 STAN. L. REV. 1147, 1174
(2009). In this respect too, useful articles’ separable
expressive features are like other creative works.
Denying protection here can be expected to reduce
innovation by making Respondents’ creative
contributions easy prey for pirates.

IV. The Copyrightability Of Overall Design Of
Clothing Is Not At Issue In This Case.

The instant case does not turn on whether the
overall design of a piece of clothing—the combined
selection and arrangement of shape, cut, fit, color,
drape, neckline, hemline, sleeve width and length, cuff,
ete.—is copyrightable. This case presents only the

29

question of the copyrightability of a design that
appears on Respondents’ cheerleading uniforms, rather
than the copyrightability of the uniforms’ overall
design. Seventy-five years ago, this Court treated
overall dress designs as unprotectable by copyright.
Fashion Originators’ Guild of Am., Inc. v. FTC, 312
U.S. 457 (1941); see C. Scott Hemphill & Jeannie Suk,
The Fashion Originators’ Guild of America: Self-Help
at the Edge of IP and Antitrust, in Intellectual
Property at the Edge: The Contested Contours of IF
159, 176 (Rochelle C. Dreyfus & Jane C. Ginsburg eds.,
2013).

This case does not require the Court to revisit the
question of whether the overall design of an item of
apparel is copyrightable. Respondents have not
asserted a copyright in overall design. If the Court
were to address this question, there are two possible
approaches. On the one hand, consistent with this
Court’s mention in Kirtsaeng of “a dress (with a design
copyright),” 133 S. Ct. at 1360, the Copyright Act's text
and its separability requirement for useful articles does
not foreclose protection for overall dress design.

On the other hand, the Copyright Office has taken a
different view, interpreting the statute not to provide
protection for overall design. This is because the
Copyright Office perceives an extra requirement
beyond an examination of the claimed expressive
features, namely whether the useful article would
survive a hypothetical removal of the expressive
features. Compendium of U.S. Copyright Office
Practices § 924.2(B), at 900:40 (8d ed. 2014). The
Copyright Office’s premise is that the protectable
elements must be “capable of being visualized . asa
work of authorship that is independent from the overall

30

shape of the useful article.” Id. If what would remain
after hypothetical removal of the work’s expressive
features is not itself a fully realized, separate work].
id., the Copyright Office would deny protection. Under
this test, copyright protection for any “integral part of
the overall shape”—such as a dress’s unique aesthetic
design—is impossible, “because removing it would
destroy the basic shape of the useful article.” Id. at
900:41.

The instant amici’s proposed test for separability
harmonizes with either understanding: the one that
focuses on the text of the Copyright Act, which is
consistent with protection of overall design, or the one
that follows the Copyright Office. But the Court need
not decide between them here, because the instant case
does not turn on whether overall design of items of
apparel would be protectable.

CONCLUSION

Whether the design features of a three-dimensional
useful article, such as a dress, are copyrightable, is
simply a manifestation of a question that runs
throughout copyright law: How does copyright protect
an object’s artistic aspects while denying protection to
its utilitarian functions? In Baker v. Selden and Mazer
„„ Stein, this Court made clear that an object's
utilitarian aspects do not foreclose copyright protection
for its artistic aspects. The question under the
Copyright Act for three-dimensional and two-
dimensional useful articles is whether an article’s
artistic features can be separated from the article’s
utilitarian ones. Amici submit that the proper test for
separability—the only test that is consistent with the
statute and basic principles of copyright law—is clear

31

and straightforward: the graphic, pictorial, or
sculptural aspects of a useful article are copyriglhitable
if they are not dictated by the article’s utilitarian
function, with the term “utilitarian” properly
understood in its practical, mechanical sense.

Respectfully submitted,

JEANNIE SUK GERSEN Scott B. WILKENS
HARVARD LAW SCHOOL Counsel of Record
1563 Massachusetts Ave. MATTHEWS. HELLMAN
Cambridge, MA 02138 SAMUEL C. BIRNBAUM*

JENNER & BLOCK LLP
C. Scorr HEMPHILL 1099 New York Ave. NW
NEW YORK UNIVERSITY Suite 900
SCHOOL OF LAW Washington, DC 20001
40 Washington Sq. South (202) 639-6000
New York, NY 10012 swilkens@jenner.com

* Admitted only in New York.
Practicing under the auperrision of the
partnership of Jenner & Block .J.

Counsel for Amici Curiae

September 21, 2016

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0647%3A17. Public record. Not legal advice.