​Star Athletica, L.L.C. v. Varsity Brands, Inc., U.S., No. 15-866, amicus brief filed 7/22/2016 July 22, 2016

Any test of copyrightability for features contained in a utilitarian work must first determine whether the work contains pictorial, graphic or sculptural elements, and if so, whether they can be identified separately from and exist independently of the unprotectable utilitarian features of the work, AIPLA argued July 22, 2016, in a Supreme Court amicus brief.

While various separability tests may be well-suited to particular works under consideration, according to the brief, the statutory scheme focuses on whether pictorial, graphic or sculptural elements remain copyrightable when incorporated into an unprotectable utilitarian design. The brief argues that many of the separability tests (including the Sixth Circuit test) inappropriately gives more attention to the utility of the work than to the presence of copyrightable elements, and specifically criticizes the use of marketability as a test of copyrightability.