Star Athletica and the Problem of Panaestheticism

In this lunchtime keynote address prepared for the UC Irvine School of Law’s Intellectual Property Law Annual Conference: The Discursive Turn in Copyright, I argue that the recent Supreme Court case Star Athletica, LLC v. Varsity Brands, Inc. has destroyed the separability test in copyright law and rendered the statutory language that supports it a nullity. What remains as a backstop is the test to determine whether a design feature is itself a “useful article,” because a design feature that satisfies Star Athletica’s separability test may nevertheless be disqualified from copyright protection if it has an “intrinsic utilitarian function” other than to portray its own appearance and is thus itself an uncopyrightable useful article. The address urges courts to shift their attention away from the now easily-satisfied separability test and toward the question of whether a design feature serves any “intrinsic utilitarian function” other than to portray its own appearance.