Assistant Director Nicholas Bartelt participated as counsel to amicus curiae New York Intellectual Property Law Association (NYIPLA) on a brief submitted on July 22, 2016, in support of neither party in Star Athletica v. Varsity Brands, 15-866 (Sup. Ct.). The case concerns the copyrightability of two-dimensional designs for cheerleading forms, and more broadly, what the appropriate test for conceptual separability is as it pertains to the copyrightability of useful articles. The brief analyzes the numerous tests that have been developed by the courts before concluding with a proposal for a test that focuses on the claimed design, and whether the “design elements inextricably intertwined with a utilitarian function of the object in which they are fixed such that they cannot be identified or exist apart from the object’s utilitarian features.” Fordham Law alumni Lauren Emerson (Baker Botts LLP) and Julie Beth Albert (Baker Botts LLP) contributed substantially to the drafting and filing of the brief.

The brief and full list of amicus counsel to the NYIPLA is available here.

Fordham IP Institute