Clarence Thomas

“ The debate over the relative utility of a plain white cheerleading uniform is unnecessary. The focus of the separability inquiry is on the extracted feature and not on any aspects of the useful article that remain after the imaginary extraction. The statute does not require the decisionmaker to imagine a fully functioning useful article without the artistic feature. ”

“ Nothing in the statute suggests that copyrightability depends on market surveys. Moreover, asking whether some segment of the market would be interested in a given work threatens to prize popular art over other forms, or to substitute judicial aesthetic preferences for the policy choices embodied in the Copyright Act. ”

“ Even if respondents ultimately succeed in establishing 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 tangible medium of expression—a uniform or otherwise. [2]
D Petitioner and the Government raise several objections to the approach we announce today. None is meritorious. ”

“ Petitioner’s argument follows from its flawed view that the statute protects only "solely artistic" features that have no effect whatsoever on a useful article’s utilitarian function. This view is inconsistent with the statutory text. The statute expressly protects two- and three-dimensional "applied art." §101. "Applied art" is art "employed in the decoration, design, or execution of useful objects," Webster’s Third New International Dictionary 105 (1976) (emphasis added) , or "those arts or crafts that have a primarily utilitarian function, or . ”

“ 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) . ”