Courts have consistently struggled to adopt a test that appropriately interprets the Copyright Act’s language protecting works of art incorporated into useful articles. The analysis that allows protections of these works of art is called “separability,” and it has been an ambiguous area of copyright law since its inception. In essence, this analysis gives copyright protection to a work of art incorporated into a useful article as long as the work of art is “separate” from the utilitarian aspects of the useful article. The Supreme Court was positioned to end the uncertainty surrounding the separability analysis in its recent decision, Star Athletica. But a survey of lower court decisions applying Star Athletica’s new test shows that it has significant shortcomings. The new analysis results in overprotection of designs incorporated into useful articles and lacks normative guidance. As a result, this Note first argues that Congress should amend the copyright statute. But, if the test remains unchanged, courts should proceed by analyzing these works of art in the following way: the more difficult it is to separate the work of art from the utilitarian aspects of the useful article, the “thinner” the copyright protection a court should give to that work of art.
Angelo Marchesini, Thin Separability: An Answer to Star Athletica, 43 SEATTLE U. L. REV. 1087 (2020).
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