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Copyright protection for useful articles is governed by the “separability” standard. That standard has confounded judges, administrators, and scholars. The Supreme Court grappled with “separability” for the first time in the 2017 case of Star Athletica v. Varsity Brands. Justice Thomas’ analysis requires that a separately-identified feature of a useful article must be eligible for protection as a pictorial, graphic, or sculptural work in order to qualify for copyright. However, a pictorial, graphic, or sculptural work is not eligible for protection if it is itself a useful article, which is defined as an article having an “intrinsic utilitarian function.” When the appearance of the separated feature reflects its utilitarian function, we are likely to perceive that function as “intrinsic” to the feature and therefor perceive the feature as an uncopyrightable useful article. The test for “separability” advanced by the Supreme Court in Star Athletica thus ultimately turns on whether we still recognize the feature as designed to serve a utilitarian function even after it is separated from the original utilitarian article.

Imagining Things: Copyright for Useful Articles After Star Athletica v. Varsity Brands