throbber

`(Slip Opinion)
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`
`
` OCTOBER TERM, 2016
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`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
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`
`
`STAR ATHLETICA, L.L.C. v. VARSITY BRANDS, INC.,
`
` ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SIXTH CIRCUIT
` No. 15–866. Argued October 31, 2016—Decided March 22, 2017
`
`The Copyright Act of 1976 makes “pictorial, graphic, or sculptural fea-
`tures” of the “design of a useful article” eligible for copyright protec-
`tion as artistic works if those features “can be identified separately
`from, and are capable of existing independently of, the utilitarian as-
`pects of the article.” 17 U. S. C. §101.
`
`Respondents have more than 200 copyright registrations for two-
`dimensional designs—consisting of various lines, chevrons, and color-
`ful shapes—appearing on the surface of the cheerleading uniforms
`
`that they design, make, and sell. They sued petitioner, who also
`markets cheerleading uniforms, for copyright infringement. The Dis-
`trict Court granted petitioner summary judgment, holding that the
`
`
`designs could not be conceptually or physically separated from the
`uniforms and were therefore ineligible for copyright protection. In
`
`reversing, the Sixth Circuit concluded that the graphics could be
`
`“identified separately” and were “capable of existing independently”
`
`of the uniforms under §101.
`Held: A feature incorporated into the design of a useful article is eligi-
`ble for copyright protection only if the feature (1) can be perceived as
`a two- or three-dimensional work of art separate from the useful arti-
`
`cle, and (2) would qualify as a protectable pictorial, graphic, or sculp-
`tural 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. That test is satisfied here. Pp. 3–17.
`
`
`
`(a) Separability analysis is necessary in this case. Respondents
`
`claim that two-dimensional surface decorations are always separable,
`even without resorting to a §101 analysis, because they are “on a use-
`ful article” rather than “designs of a useful article.” But this argu-
`
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`

`

`2
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`
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`STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`
`Syllabus
`ment is inconsistent with §101’s text. ”[P]ictorial” and “graphic” de-
`note two-dimensional features such as pictures, paintings, or draw-
`ings. Thus, by providing protection for “pictorial, graphical, and
`
`sculptural works” incorporated into the “design of a useful article,”
`§101 necessarily contemplates that such a design can include two-
`dimensional features. This Court will not adjudicate in the first in-
`stance the Government’s distinct argument against applying separa-
`
`bility analysis, which was neither raised below nor advanced here by
`
`any party. Pp. 4–6.
`
`
`(b) Whether a feature incorporated into a useful article “can be
`
`identified separately from,” and is “capable of existing independently
`of,” the article’s “utilitarian aspects” is a matter of “statutory inter-
`
`
`pretation.” Mazer v. Stein, 347 U. S. 201, 214. Pp. 6–10.
`
`(1) Section 101’s separate-identification requirement is met if the
`
`decisionmaker is able to look at the useful article and spot some two-
`or three-dimensional element that appears to have pictorial, graphic,
`
`or sculptural qualities. To satisfy the independent-existence re-
`quirement, the feature must be able to exist as its own pictorial,
`
`graphic, or sculptural work once it is imagined apart from the useful
`article. If the feature could not exist as a pictorial, graphic, or sculp-
`
`
`tural work on its own, it is simply one of the article’s utilitarian as-
`
`pects. And to qualify as a pictorial, graphic, or sculptural work on its
`
`own, the feature cannot be a useful article or “[a]n article that is
`normally a part of a useful article,” §101. Neither could one claim a
`copyright in a useful article by creating a replica of it in another me-
`dium. Pp. 7–8.
`
`
`
`(2) The statute as a whole confirms this interpretation. Section
`
`101, which protects art first fixed in the medium of a useful article, is
`
`essentially the mirror image of §113(a), which protects art first fixed
`
`in a medium other than a useful article and subsequently applied to a
`
`useful article. Together, these provisions make clear that copyright
`protection extends to pictorial, graphic, and sculptural works regard-
`less of whether they were created as freestanding art or as features of
`
`useful articles. P. 8.
`
`
`
`(3) This interpretation is also consistent with the Copyright Act’s
`history. In Mazer, a case decided under the 1909 Copyright Act, the
`Court held that respondents owned a copyright in a statuette created
`for use as a lamp base. In so holding, the Court approved a Copy-
`
`right Office regulation extending protection to works of art that
`
`
`might also serve a useful purpose and held that it was irrelevant to
`
`the copyright inquiry whether the statuette was initially created as a
`freestanding sculpture or as a lamp base. Soon after, the Copyright
`Office enacted a regulation implementing Mazer’s holding that antic-
`ipated the language of §101, thereby introducing the modern separa-
`
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`
`
`

`

`3
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`
`Cite as: 580 U. S. ____ (2017)
`
`
`Syllabus
`bility test to copyright law. Congress essentially lifted the language
`
`from those post-Mazer regulations and placed it in §101 of the 1976
`Act. Pp. 8–10.
`
`(c) Applying the proper test here, the surface decorations on the
`cheerleading uniforms are separable and therefore eligible for copy-
`
`right protection. First, the decorations can be identified as features
`having pictorial, graphic, or sculptural qualities. Second, if those
`decorations were separated from the uniforms and applied in another
`medium, they would qualify as two-dimensional works of art under
`
`§101. Imaginatively removing the decorations from the uniforms and
`applying them in another medium also would not replicate the uni-
`form itself.
`
`The dissent argues that the decorations are ineligible for copyright
`protection because, when imaginatively extracted, they form a pic-
`
`ture of a cheerleading uniform. Petitioner similarly claims that the
`decorations cannot be copyrighted because, even when extracted from
`
`the useful article, they retain the outline of a cheerleading uniform.
`But this is not a bar to copyright. Just as two-dimensional fine art
`correlates to the shape of the canvas on which it is painted, two-
`dimensional applied art correlates to the contours of the article on
`which it is applied. The only feature of respondents’ cheerleading
`
`uniform eligible for a copyright is the two-dimensional applied art on
`the surface of the uniforms. Respondents may prohibit the reproduc-
`tion only of the surface designs on a uniform or in any other medium
`of expression. Respondents have no right to prevent anyone from
`
`manufacturing a cheerleading uniform that is identical in shape, cut,
`or dimensions to the uniforms at issue here. Pp. 10–12.
`
`(d) None of the objections raised by petitioner or the Government is
`meritorious. Pp. 12–17.
`
`(1) Petitioner and the Government focus on the relative utility
`of the plain white uniform that would remain if the designs were
`
`physically removed from the uniform. But the separability inquiry
`focuses on the extracted feature and not on any aspects of the useful
`
`article remaining after the imaginary extraction. The statute does
`
`not require the imagined remainder to be a fully functioning useful
`article at all. Nor can an artistic feature that would be eligible for
`
`copyright protection on its own lose that protection simply because it
`was first created as a feature of the design of a useful article, even if
`it makes that article more useful. This has been the rule since Ma-
`zer, and it is consistent with the statute’s explicit protection of “ap-
`
`
`plied art.” In rejecting petitioner’s view, the Court necessarily aban-
`dons the distinction between “physical” and “conceptual” separability
`adopted by some courts and commentators. Pp. 12–15.
`
`(2) Petitioner also suggests incorporating two “objective” com-
`
`
`
`
`
`
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`

`

`4
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`STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`
`Syllabus
`ponents into the test—one requiring consideration of evidence of the
`
`creator’s design methods, purposes, and reasons, and one looking to
`the feature’s marketability. The Court declines to incorporate these
`
`components because neither is grounded in the statute’s text.
`Pp. 15–16.
`(3) Finally, petitioner claims that protecting surface decora-
`tions is inconsistent with Congress’ intent to entirely exclude indus-
`trial design from copyright. But Congress has given limited copy-
`right protection to certain features of industrial design. Approaching
`the statute with presumptive hostility toward protection for industri-
`al design would undermine that choice. In any event, the test adopt-
`ed here does not render the underlying uniform eligible for copyright
`
`protection. Pp. 16–17.
`799 F. 3d 468, affirmed.
`THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
`
`
`
`C. J., and ALITO, SOTOMAYOR, and KAGAN, JJ., joined. GINSBURG, J., filed
`
`
`
`
`
`
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`
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`an opinion concurring in the judgment. BREYER, J., filed a dissenting
`
`
` opinion, in which KENNEDY, J., joined.
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`
`
`

`

`
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`
` Cite as: 580 U. S. ____ (2017)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
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`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 15–866
`_________________
`STAR ATHLETICA, L. L. C., PETITIONER v. VARSITY
`
` BRANDS, INC., ET AL.
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE SIXTH CIRCUIT
`[March 22, 2017]
` JUSTICE THOMAS delivered the opinion of the Court.
`
`
`Congress has provided copyright protection for original
`
`works of art, but not for industrial designs. The line
`between art and industrial design, however, is often diffi-
`cult to draw. This is particularly true when an industrial
`design incorporates artistic elements. Congress has af-
`
`forded limited protection for these artistic elements by
`providing that “pictorial, graphic, or sculptural features”
`of the “design of a useful article” are eligible for copyright
`protection as artistic works if those features “can be iden-
`tified separately from, and are capable of existing inde-
`pendently of, the utilitarian aspects of the article.” 17
`U. S. C. §101.
`
`We granted certiorari to resolve widespread disagree-
`
`ment over the proper test for implementing §101’s separate-
`
`identification and independent-existence requirements.
`578 U. S. ___ (2016). We hold that a feature incor-
`
`porated into the design of a useful article is eligible for
`copyright protection only if the feature (1) can be per-
`
`ceived as a two- or three-dimensional work of art separate
`from the useful article and (2) would qualify as a protecta-
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`
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`

`

`2
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` STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`Opinion of the Court
`
` ble pictorial, graphic, or sculptural work—either on its
`own or fixed in some other tangible medium of expres-
`sion—if it were imagined separately from the useful arti-
`cle into which it is incorporated. Because that test is
`
`satisfied in this case, we affirm.
`I
`
`Respondents Varsity Brands, Inc., Varsity Spirit Corpo-
`ration, and Varsity Spirit Fashions & Supplies, Inc., de-
`sign, make, and sell cheerleading uniforms. Respondents
`have obtained or acquired more than 200 U. S. copyright
`
`registrations for two-dimensional designs appearing on
`the surface of their uniforms and other garments. These
`designs are primarily “combinations, positionings, and
`
`arrangements of elements” that include “chevrons . . . ,
`lines, curves, stripes, angles, diagonals, inverted [chev-
`rons], coloring, and shapes.” App. 237. At issue in this
`case are Designs 299A, 299B, 074, 078, and 0815. See
`Appendix, infra.
`
`Petitioner Star Athletica, L. L. C., also markets and
`sells cheerleading uniforms. Respondents sued petitioner
`
`for infringing their copyrights in the five designs. The
`
`
`District Court entered summary judgment for petitioner
`on respondents’ copyright claims on the ground that the
`
`designs did not qualify as protectable pictorial, graphic, or
`sculptural works. It reasoned that the designs served the
`useful, or “utilitarian,” function of identifying the gar-
`ments as “cheerleading uniforms” and therefore could not
`
`be “physically or conceptually” separated under §101 “from
`the utilitarian function” of the uniform. 2014 WL 819422,
`*8–*9 (WD Tenn., Mar. 1, 2014).
`
`
`
`The Court of Appeals for the Sixth Circuit reversed. 799
`F. 3d 468, 471 (2015). In its view, the “graphic designs”
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`were “separately identifiable” because the designs “and a
`blank cheerleading uniform can appear ‘side by side’—one
`
`as a graphic design, and one as a cheerleading uniform.”
`
`

`

`
`
`3
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`
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` Cite as: 580 U. S. ____ (2017)
`
`Opinion of the Court
`Id., at 491 (quoting Compendium of U. S. Copyright Office
`Practices §924.2(B) (3d ed. 2014) (Compendium)). And it
`determined that the designs were “‘capable of existing
`independently’” because they could be incorporated onto
`
`the surface of different types of garments, or hung on the
`
`wall and framed as art. 799 F. 3d, at 491, 492.
`Judge McKeague dissented. He would have held that,
`
`
`because “identifying the wearer as a cheerleader” is a
`utilitarian function of a cheerleading uniform and the
`surface designs were “integral to” achieving that function,
`
`the designs were inseparable from the uniforms. Id., at
`
`495–496.
`
`
`
`
`
`
`II
`
`
`The first element of a copyright-infringement claim is
`“ownership of a valid copyright.” Feist Publications, Inc. v.
`
`Rural Telephone Service Co., 499 U. S. 340, 361 (1991). A
`
`valid copyright extends only to copyrightable subject
`matter. See 4 M. Nimmer & D. Nimmer, Copyright
`§13.01[A] (2010) (Nimmer). The Copyright Act of 1976
`
`defines copyrightable subject matter as “original works of
`
`authorship fixed in any tangible medium of expression.”
`17 U. S. C. §102(a).
`
`“Works of authorship” include “pictorial, graphic, and
`
`
`sculptural works,” §102(a)(5), which the statute defines to
`include “two-dimensional and three-dimensional works of
`fine, graphic, and applied art, photographs, prints and art
`reproductions, maps, globes, charts, diagrams, models,
`and technical drawings, including architectural plans,”
`
`§101. And a work of authorship is “‘fixed’ in a tangible
`medium of expression when it[ is] embodi[ed] in a” “mate-
`
`rial objec[t] . . . from which the work can be perceived,
`reproduced, or otherwise communicated.” Ibid. (defini-
`tions of “fixed” and “copies”).
`
`The Copyright Act also establishes a special rule for
`copyrighting a pictorial, graphic, or sculptural work incor-
`
`
`
`
`
`

`

`4
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`
`
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` STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`Opinion of the Court
`porated into a “useful article,” which is defined as “an
`article having an intrinsic utilitarian function that is not
`merely to portray the appearance of the article or to con-
`vey information.”
`Ibid. The statute does not protect
`
`useful articles as such. Rather, “the design of a useful
`
`article” is “considered a pictorial, graphical, or sculptural
`
`work only if, and only to the extent that, such design
`incorporates pictorial, graphic, or sculptural features that
`can be identified separately from, and are capable of exist-
`ing independently of, the utilitarian aspects of the article.”
`Ibid.
`
`
`Courts, the Copyright Office, and commentators have
`described the analysis undertaken to determine whether a
`feature can be separately identified from, and exist inde-
`
`pendently of, a useful article as “separability.” In this
`
`case, our task is to determine whether the arrangements
`of lines, chevrons, and colorful shapes appearing on the
`
`surface of respondents’ cheerleading uniforms are eligible
`for copyright protection as separable features of the design
`of those cheerleading uniforms.
`A
`
`As an initial matter, we must address whether separa-
`
`bility analysis is necessary in this case.
`1
`
`
`
`Respondents argue that “[s]eparability is only implicated
`when a [pictorial, graphic, or sculptural] work is the ‘de-
`
`sign of a useful article.’” Brief for Respondents 25. They
`contend that the surface decorations in this case are “two-
`dimensional graphic designs that appear on useful arti-
`
`cles,” but are not themselves designs of useful articles.
`
`Id., at 52. Consequently, the surface decorations are
`protected two-dimensional works of graphic art without
`regard to any separability analysis under §101. Ibid.; see
`2 W. Patry, Copyright §3:151, p. 3–485 (2016) (Patry)
`
`
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`
`

`

`5
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` Cite as: 580 U. S. ____ (2017)
`
`Opinion of the Court
`(“Courts looking at two-dimensional design claims should
`not apply the separability analysis regardless of the three-
`dimensional form that design is embodied in”). Under this
`theory, two-dimensional artistic features on the surface of
`useful articles are “inherently separable.” Brief for Re-
`spondents 26.
`This argument is inconsistent with the text of §101. The
`
`
`statute requires separability analysis for any “pictorial,
`graphic, or sculptural features” incorporated into the
`“design of a useful article.” “Design” refers here to “the
`combination” of “details” or “features” that “go to make up”
`
`the useful article. 3 Oxford English Dictionary 244 (def. 7,
`
`first listing) (1933) (OED). Furthermore, the words “picto-
`rial” and “graphic”
`include,
`in this context, two-
`dimensional features such as pictures, paintings, or draw-
`ings. See 4 id., at 359 (defining “[g]raphic” to mean “[o]f or
`pertaining to drawing or painting”); 7 id., at 830 (defining
`“[p]ictorial” to mean “of or pertaining to painting or draw-
`ing”). And the statute expressly defines “[p]ictorial,
`graphical, and sculptural works”
`to
`include “two-
` dimensional . . . works of . . . art.” §101. The statute thus
`
`provides that the “design of a useful article” can include
`
`
`two-dimensional “pictorial” and “graphic” features, and
`separability analysis applies to those features just as it
`
`does to three-dimensional “sculptural” features.
`2
`
`The United States makes a related but distinct argu-
`ment against applying separability analysis in this case,
`which respondents do not and have not advanced. As part
`
`of their copyright registrations for the designs in this case,
`
`respondents deposited with the Copyright Office drawings
`
`and photographs depicting the designs incorporated onto
`cheerleading uniforms. App. 213–219; Appendix, infra.
`The Government argues that, assuming the other statutory
`
`requirements were met, respondents obtained a copyright
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`

`

`6
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` STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`Opinion of the Court
`in the deposited drawings and photographs and have
`
`simply reproduced those copyrighted works on the surface
`of a useful article, as they would have the exclusive right
`
`to do under the Copyright Act. See Brief for United States
`as Amicus Curiae 14–15, 17–22. Accordingly, the Gov-
`ernment urges, separability analysis is unnecessary on the
`record in this case. We generally do not entertain argu-
`ments that were not raised below and that are not ad-
`
`
`vanced in this Court by any party, Burwell v. Hobby Lobby
`Stores, Inc., 573 U. S. ___, ___ (2014), because “[i]t is not
`
`the Court’s usual practice to adjudicate either legal or
`predicate factual questions in the first instance,” CRST
`
`
`Van Expedited, Inc. v. EEOC, 578 U. S. ___, ___ (2016)
`(slip op., at 16). We decline to depart from our usual
`practice here.
`
`
`
`B
`
`
`We must now decide when a feature incorporated into a
`useful article “can be identified separately from” and is
`“capable of existing independently of ” “the utilitarian
`
`aspects” of the article. This is not a free-ranging search
`for the best copyright policy, but rather “depends solely on
`
`statutory interpretation.” Mazer v. Stein, 347 U. S. 201,
`214 (1954). “The controlling principle in this case is the
`basic and unexceptional rule that courts must give effect
`to the clear meaning of statutes as written.” Estate of
`
`
`Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992).
`
`We thus begin and end our inquiry with the text, giving
`
`each word its “ordinary, contemporary, common meaning.”
`
`Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S.
`
`202, 207 (1997) (internal quotation marks omitted). We do
`
`not, however, limit this inquiry to the text of §101 in
`
`isolation. “[I]nterpretation of a phrase of uncertain reach
`is not confined to a single sentence when the text of the
`whole statute gives instruction as to its meaning.” Mara­
`cich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 15).
`
`
`
`

`

`
`
`7
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` Cite as: 580 U. S. ____ (2017)
`
`Opinion of the Court
`We thus “look to the provisions of the whole law” to de-
`termine §101’s meaning. United States v. Heirs of Bois­
`doré, 8 How. 113, 122 (1849).
`1
`The statute provides that a “pictorial, graphic, or sculp-
`
`tural featur[e]” incorporated into the “design of a useful
`article” is eligible for copyright protection if it (1) “can be
`
`identified separately from,” and (2) is “capable of existing
`
`independently of, the utilitarian aspects of the article.”
`§101. The first requirement—separate identification—is
`
`not onerous. The decisionmaker need only be able to look
`
`at the useful article and spot some two- or three-
`dimensional element that appears to have pictorial, graphic,
`
`or sculptural qualities. See 2 Patry §3:146, at 3–474 to
`
`3–475.
`The independent-existence requirement is ordinarily
`
`more difficult to satisfy. The decisionmaker must deter-
`mine that the separately identified feature has the capacity
`
`to exist apart from the utilitarian aspects of the article.
`See 2 OED 88 (def. 5) (defining “[c]apable” of as “[h]aving
`the needful capacity, power, or fitness for”). In other
`words, the feature must be able to exist as its own pictorial,
`graphic, or sculptural work as defined in §101 once it is
`
`imagined apart from the useful article. If the feature is
`not capable of existing as a pictorial, graphic, or sculptural
`work once separated from the useful article, then it was
`not a pictorial, graphic, or sculptural feature of that arti-
`cle, but rather one of its utilitarian aspects.
`Of course, to qualify as a pictorial, graphic, or sculptural
`
`
`work on its own, the feature cannot itself be a useful
`
`article or “[a]n article that is normally a part of a useful
`article” (which is itself considered a useful article). §101.
`
`Nor could someone claim a copyright in a useful article
`merely by creating a replica of that article in some other
`
`medium—for example, a cardboard model of a car. Al-
`
`
`
`
`
`

`

`8
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` STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`Opinion of the Court
`though the replica could itself be copyrightable, it would
`not give rise to any rights in the useful article that in-
`spired it.
`
`
`
`2
`
`The statute as a whole confirms our interpretation. The
`
`Copyright Act provides “the owner of [a] copyright” with
`
`the “exclusive righ[t] . . . to reproduce the copyrighted
`work in copies.” §106(1). The statute clarifies that this
`
`right “includes the right to reproduce the [copyrighted]
`work in or on any kind of article, whether useful or other-
`wise.” §113(a). Section 101 is, in essence, the mirror
`
`image of §113(a). Whereas §113(a) protects a work of
`
`authorship first fixed in some tangible medium other than
`a useful article and subsequently applied to a useful arti-
`
`cle, §101 protects art first fixed in the medium of a useful
`
`article. The two provisions make clear that copyright
`protection extends to pictorial, graphic, and sculptural
`works regardless of whether they were created as free-
`
`standing art or as features of useful articles. The ultimate
`
`separability question, then, is whether the feature for
`which copyright protection is claimed would have been
`eligible for copyright protection as a pictorial, graphic, or
`sculptural work had it originally been fixed in some tangi-
`ble medium other than a useful article before being ap-
`plied to a useful article.
`
`3
`
`This interpretation is also consistent with the history of
`
`the Copyright Act. In Mazer, a case decided under the
`1909 Copyright Act, the respondents copyrighted a statu-
`ette depicting a dancer. The statuette was intended for
`
`use as a lamp base, “with electric wiring, sockets and lamp
`shades attached.” 347 U. S., at 202. Copies of the statu-
`
`ette were sold both as lamp bases and separately as statu-
`ettes. Id., at 203. The petitioners copied the statuette and
`
`

`

`
`
`9
`
`
`
` Cite as: 580 U. S. ____ (2017)
`
`Opinion of the Court
`sold lamps with the statuette as the base. They defended
`
`against the respondents’ infringement suit by arguing that
`the respondents did not have a copyright in a statuette
`intended for use as a lamp base. Id., at 204–205.
` Two of Mazer’s holdings are relevant here. First, the
`Court held that the respondents owned a copyright in the
`statuette even though it was intended for use as a lamp
`base. See id., at 214. In doing so, the Court approved the
`Copyright Office’s regulation extending copyright protec-
`
`tion to works of art that might also serve a useful purpose.
`See ibid. (approving 37 CFR §202.8(a) (1949) (protect-
`
`
`ing “works of artistic craftsmanship, in so far as their
`form but not their mechanical or utilitarian aspects are
`concerned”)).
`
`
`Second, the Court held that it was irrelevant to the
`copyright inquiry whether the statuette was initially
`created as a freestanding sculpture or as a lamp base. 347
`U. S., at 218–219 (“Nor do we think the subsequent regis-
`tration of a work of art published as an element in a man-
`
`
`ufactured article, is a misuse of copyright. This is not
`
`different from the registration of a statuette and its later
`embodiment in an industrial article”). Mazer thus inter-
`preted the 1909 Act consistently with the rule discussed
`above: If a design would have been copyrightable as a
`
`standalone pictorial, graphic, or sculptural work, it is
`copyrightable if created first as part of a useful article.
`
`Shortly thereafter, the Copyright Office enacted a regu-
`lation implementing the holdings of Mazer. See 1 Nimmer
`§2A.08[B][1][b] (2016). As amended, the regulation intro-
`duced the modern separability test to copyright law:
`“If the sole intrinsic function of an article is its utility,
`
`the fact that the article is unique and attractively
`shaped will not qualify it as a work of art. However, if
`the shape of a utilitarian article incorporates features,
`such as artistic sculpture, carving, or pictorial repre-
`
`

`

`
` 10
`
`
`
`
` STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`Opinion of the Court
`
` sentation, which can be identified separately and are
`
`capable of existing independently as a work of art,
`
`such features will be eligible for registration.” 37 CFR
`§202.10(c) (1960) (punctuation altered).
`Congress essentially lifted the language governing
`
`
`protection for the design of a useful article directly from
`
`the post-Mazer regulations and placed it into §101 of the
`
`1976 Act. Consistent with Mazer, the approach we outline
`today interprets §§101 and 113 in a way that would afford
`copyright protection to the statuette in Mazer regardless
`of whether it was first created as a standalone sculptural
`
`work or as the base of the lamp. See 347 U. S., at
`
`218–219.
`
`
`
`C
`In sum, a feature of the design of a useful article is
`
`eligible for copyright if, when identified and imagined
`apart from the useful article, it would qualify as a pictorial,
`
`
`graphic, or sculptural work either on its own or when fixed
`
`in some other tangible medium.
`Applying this test to the surface decorations on the
`
`
`cheerleading uniforms is straightforward. First, one can
`identify the decorations as features having pictorial,
`graphic, or sculptural qualities. Second, if the arrange-
`ment of colors, shapes, stripes, and chevrons on the sur-
`face of the cheerleading uniforms were separated from the
`
`uniform and applied in another medium—for example, on a
`
`
`painter’s canvas—they would qualify as “two-dimensional
`. . . works of . . . art,” §101. And imaginatively removing
`the surface decorations from the uniforms and applying
`
`them in another medium would not replicate the uniform
`
`itself. Indeed, respondents have applied the designs in
`this case to other media of expression—different types of
`
`clothing—without replicating the uniform. See App. 273–
`279. The decorations are therefore separable from the
`
`

`

`
`
`
`11
`
`
`Cite as: 580 U. S. ____ (2017)
`
`Opinion of the Court
` uniforms and eligible for copyright protection.1
`
`The dissent argues that the designs are not separable
`
`because imaginatively removing them from the uniforms
`and placing them in some other medium of expression—a
`canvas, for example—would create “pictures of cheerleader
`uniforms.” Post, at 10 (opinion of BREYER, J.). Petitioner
`
`
`similarly argues that the decorations cannot be copyrighted
`because, even when extracted from the useful article,
`they retain the outline of a cheerleading uniform. Brief
`for Petitioner 48–49.
`
`This is not a bar to copyright. Just as two-dimensional
`
`fine art corresponds to the shape of the canvas on which it
`
`is painted, two-dimensional applied art correlates to the
`contours of the article on which it is applied. A fresco
`
`painted on a wall, ceiling panel, or dome would not lose
`copyright protection, for example, simply because it was
`designed to track the dimensions of the surface on which it
`was painted. Or consider, for example, a design etched or
`painted on the surface of a guitar. If that entire design is
`imaginatively removed from the guitar’s surface and
`placed on an album cover, it would still resemble the
`
`shape of a guitar. But the image on the cover does not
`“replicate” the guitar as a useful article. Rather, the
`
`
`design is a two-dimensional work of art that corresponds
`
`to the shape of the useful article to which it was applied.
`The statute protects that work of art whether it is first
`drawn on the album cover and then applied to the guitar’s
`
`surface, or vice versa. Failing to protect that art would
`create an anomaly: It would extend protection to two-
`dimensional designs that cover a part of a useful article
`but would not protect the same design if it covered the
`——————
`1We do not today hold that the surface decorations are copyrightable.
`
`We express no opinion on whether these works are sufficiently original
` to qualify for copyright protection, see Feist Publications, Inc. v. Rural
`
`
`
`Telephone Service Co., 499 U. S. 340, 358–359 (1991), or on whether
`
` any other prerequisite of a valid copyright has been satisfied.
`
`
`
`
`
`

`

`
`12
`
`
`
`STAR ATHLETICA, L. L. C. v. VARSITY BRANDS, INC.
`
`Opinion of the Court
`entire article. The statute does not support that distinc-
`
`tion, nor can it be reconciled with the dissent’s recognition
`
`that “artwork printed on a t-shirt” could be protected.
`Post, at 4 (internal quotation marks omitted).
`
`
`To be clear, the only feature of the cheerleading uniform
`eligible for a copyright in this case is the two-dimensional
`
`work of art fixed in the tangible medium of the uniform
`fabric. Even if respondents ultimately succeed in estab-
`
`lishing a valid copyright in the surface decorations at
`
`issue here, respondents have no right to prohibit any
`person from manufacturing a cheerleading uniform of
`
`identical shape, cut, and dimensions to the ones on which
`
`the decorations in this case appear. They may prohibit
`only the reproduction of the surface designs in any tang

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