9 - ‘Courts Have Twisted Themselves into Knots’ (and the Twisted Knots Remain to Untangle): US Copyright Protection for Applied Art after Star Athletica

Summary

Domestic and international law makers have struggled to determine whether, and to what extent, copyright law should cover works that are both artistic and functional. American courts' application of a statutory “separability” standard has become so convoluted that the U.S. Supreme Court has decided an appeal from a case in which the appellate court expressed the lament quoted in the title of this Chapter. The Chapter will review the genesis and application of the statutory standard, especially in the Supreme Court’s decision in Star Athletica v Varsity Brands (2017), and, having concluded that the Supreme Court has failed to untangle the knots, will offer a legislative proposal.