On March 22, 2017, the Supreme Court issued a ruling in Star Athletica, L.L.C. v. Varsity Brands, Inc., et al, No 15-866, clarifying that the Copyright Act protects applied artistic elements appearing on utilitarian objects, including apparel. In a ruling authored by Justice Clarence Thomas, the Court held that: “[a] feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three- dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.”
Margaret Wheeler-Frothingham is an associate in Arent Fox’s Intellectual Property practice. Margaret’s practice covers all aspects of copyright and trademark law with a particular emphasis on the music, entertainment and fashion industries. Margaret litigates copyright compulsory license rate-setting proceedings, including proceedings before the Copyright Royalty Board. Margaret is experienced in drafting and negotiating intellectual property licenses and agreements, including royalty agreements for the public performance of copyrighted musical works, literary publishing agreements, collaboration agreements, and trademark license agreements. Margaret has represented the global trademark portfolios of multinational corporations in connection with international and domestic trademark prosecution, enforcement and litigation.
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