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Authors

Dorien Clark

Abstract

In the world of fashion, few have been able to gain copyright protection for their most ambitious and intricate designs. The useful article prohibition has long haunted designers and has left them with less desirable forms of protection, such as design patent or trade dress protections. Sympathetic to the artistic nature of many useful article designs, courts crafted varying standards to allow copyright protection for artistic aspects separable from the useful article. The Supreme Court articulated a new separability standard in Star Athletica v. Varsity Brands, which introduced a new chapter of copyright protection for useful articles. Although the standard sought to clarify the wide-spread disagreement over the separability doctrine, it has been shown to have low practical application. In 2018, Kanye West brought his notorious shoe, the Yeezy® Boost 350, to the Copyright Office to gain protection under Star Athletica. After a few attempts, he was able to convince the Copyright Office that his “2-D and sculptural claims” were copyrightable subject matter and not just an attempt to copyright a shoe. The registration of the two Yeezy® Boost 350 designs show the inherent inaptitude of Star Athletica and highlight the concerns professed by Justice Breyer.

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