Authored By: Kumba Jallow
University of West London
Abstract
Fashion design represents a multi-billion-dollar creative industry that surprisingly lacks cohesive copyright protection. This article examines the legal hurdle of the ‘useful article’ doctrine and the requirement of physical or conceptual ‘separability’. By analysing case law and legal principles, the study evaluates landmark judgments from the US Supreme Court (Star Athletica), the Court of Justice of the European Union (Cofemel) and UK courts (Response Clothing). The article finds that traditional copyright frameworks fail to accommodate three-dimensional garments, creating a legal loophole for quick fashion exploitation and the rise of ‘dupes’. It concludes by advocating for a unified ‘sui generis’ legislative approach to safeguard contemporary fashion design[1].
Introduction
Fashion serves as a powerful form of functional art. While a traditional painting or musical song receives automatic copyright protection upon its creation, a physical garment is treated by legal systems as a utilitarian commodity[2]. This clear legal distinction deprives fashion designers of long-term copyright security, forcing them to rely on more restrictive, short-term design rights that do not protect their primary creative assets. This legal reality raises a critical inquiry: To what extent do contemporary copyright frameworks adequately protect the intellectual property of original fashion designs against commercial imitation? To answer whether fashion design is truly eligible for copyright protection, this article evaluates the structural flaws of the current global legal landscape. Structurally, Section 4 establishes the conceptual framework of utility and originality, while Section 5 provides an analytical critique of the separability doctrine and the fast-fashion loophole. Section 6 explores foundational case law across the US, EU and UK to highlight judicial trends. Section 7 evaluates the critical regulatory gaps and policy implications affecting independent creators, and Section 8 concludes by offering targeted legal recommendations for structural reform.
Background and Conceptual Framework
The threshold for fashion copyright is governed by restrictive statutory boundaries that make it difficult to harmonise useful and artistic expression. In the United States, the Copyright Act of 1976 explicitly limits protection through the ‘useful article’ doctrine[3]. This framework establishes the legal fiction of ‘separability’, requiring that an artistic feature incorporated into a utilitarian object be identified separately from and exist independently of, its functional aspects[4]. To satisfy this test, an element must be able to exist as its own ‘pictorial, graphic or sculptural work’ if imagined apart from the useful article[5]. In contrast, the United Kingdom’s Copyright, Designs and Patents Act 1988 (CDPA) restricts protection to rigid statutory categories. Under s.4(1)(a) CDPA, courts cannot stretch definitions to classify physical garments or textiles as ‘graphic works’[6]. Instead, design houses are forced to rely on s.4(1)(c) CDPA, which protects ‘works of artistic craftsmanship’[7]. As applied by HHJ Hacon in Response Clothing, this classification requires a complicated interplay of designer artistry, craftsman intent and aesthetic appeal[8].
These statutory categories are fundamentally challenged by changing legal and academic definitions of originality and innovation. In European law, Cofemel established that copyright requires only objective originality when a creator makes free and creative choices, with no additional requirement to show aesthetic appeal[9]. This standard directly conflicts with the domestic approach under s.4(1)(c) CDPA[10], which relies on historical principles from Bonz Group to demand evidence of craftsmanship and an intention to create an item that is aesthetically pleasing[11].
The ‘Piracy Paradox (2006) has long been used by academics to defend the strict regulatory emphasis on usefulness over art[12]. This theory asserts that the systematic copying of designs actually fuels the fashion cycle, forcing luxury brands to constantly innovate and rendering copyright protection unnecessary. However, this article directly challenges that premise[13]. By examining how these historical definitions of utility and craftsmanship are applied under the CDPA and US law, this study demonstrates that the current framework does not stimulate innovation. Rather, it creates an outdated legal gap that exposes creators to unchecked commercial exploitation.
Legal Analysis
This section examines the practical mechanics of modern intellectual property systems and their structural failure to protect fashion garments. The research focuses on three systemic vulnerabilities: the conceptual error in the separability doctrine, the legal landscape enabling fast-fashion ‘dupes’ and the statutory limitations of short-term design rights compared to long-term copyright protection. By addressing the conflict between aesthetic form and utilitarian function, this critique demonstrates how existing legal standards systematically leave original 3D garment structures vulnerable to commercial exploitation.
The ‘Separability dilemma’ severely undermines the standard for gaining copyright protection in fashion[14]. Prior to the United States Supreme Court intervention in Star Athletica, circuit courts had created a number of competing standards, making the evaluation of useful articles highly inconsistent and unpredictable. While Star Athletica sought to clarify and simplify this test under the Copyright Act by holding that an artistic feature is eligible for protection if it can be perceived as a two or three-dimensional work of art separate from the useful article, the decision reinforces a flawed conceptual boundary[15]. Critically evaluating this standard, it is clear that a garment’s silhouette, drape, and three-dimensional cut cannot be dismissed as mere physical housings for surface art; rather, the aesthetic form of an apparel design is inherently linked to its purpose. By requiring that a protectable feature exist independently of the article’s utilitarian aspects, the separability doctrine relies on a legal fiction. It fails to recognize applied design as an indivisible creative whole, effectively stripping the primary medium of fashion design, the physical architectural structure of the clothing, of copyright eligibility.
Under standard unfair competition principles, such as Article 11 of the Spanish Unfair Competition Act, product imitation is generally permitted to foster open market competition and allow companies to improve upon existing designs[16]. This statutory tolerance for free imitation only stops when a creation is explicitly protected by an exclusive intellectual property right, such as a registered trademark or an industrial design. Fast-fashion giants actively exploit this structural loophole by producing dupes rather than genuine counterfeits[17]. While counterfeiting illegally and identically reproduces a protected trademark to deceive consumers, a dupe introduces deliberate, creative variations that blur the boundaries of legality. Because these copies present structural differences, copycats can legally defend their products as legitimate ‘inspiration’ rather than actionable intellectual property infringement. Fast-fashion companies successfully bypass legal liability by systematically cloning three-dimensional silhouettes while avoiding exact replication of two-dimensional cloth designs.Without automatic copyright protection, independent designers must use unfair competition rules or 3D trademarks to prove consumer confusion. This legal hurdle is highly difficult because the outcome is entirely subjective, uncertain and case specific . [18]
Furthermore, designers who are unable to get long-term copyright are forced into the ‘registration vs. unregistered trap’ of design rights, which provides severely limited windows of safety. Under the UK Intellectual Property Office framework, a UK Registered Design Right provides up to 25 years of protection from the filing date and grants a true monopoly where no intentional copying needs to be proven[19]. However, obtaining this requires a formal application process and immediate financial investment before a collection’s market viability is even known. On the other hand, the UK Unregistered Design Right arises automatically but lasts for a drastically shorter duration, extending only 15 years from recording or 10 years from first marketing. The scope of the unregistered right is exclusively limited to the three-dimensional shape or configuration of an article and explicitly excludes mere surface decoration. It also demands a much higher burden of proof, requiring the creator to definitively prove that the infringer intentionally copied the design to produce articles exactly or substantially to that design[20]. Because fashion cycles are rapid and brief, this statutory structure creates a regulatory trap: designers must either invest capital upfront for a registered monopoly or rely on a weak unregistered right that lacks the robust, long-term security of a standard copyright lifetime, leaving creative assets systematically unprotected over time.
Case Law Discussion
The legal response to fashion copyright showcases a significant variance in how international courts approach the utilitarian boundary. In the United States, the threshold for protecting clothing remains strictly bound to surface aesthetics under the ‘useful article’ doctrine[21]. In Star Athletica, LLC v. Varsity Brands, Inc. (2017), the US Supreme Court established a dual test for separability. The Court ruled that a feature incorporated into a useful article is copyrightable only if it can be perceived as a two or three-dimensional work of art separate from the article and would qualify as a protectable pictorial, graphic or sculptural work if imagined independently. Applying this, the majority held that two-dimensional geometric cheerleader uniform decorations were protectable because they could be conceptually separated, dismissing the argument that the extracted design still mirrored the uniform’s outline[22]. Critically, this reveals that US law only safeguards surface decoration. It leaves the three-dimensional cut, drape and structural silhouette of a garment entirely unprotected, making the core of apparel design vulnerable to legal duplication.
The Court of Justice of the European Union (CJEU) changed the focus from physical form to conceptual origin. In Cofemel v G-Star Raw (2019), G-Star alleged that Cofemel infringed its copyright regarding original jeans and t-shirt designs[23]. Addressing Article 2(a) of the InfoSoc Directive, the CJEU established that a ‘work’ requires two cumulative criteria: the existence of an original object expressing the author’s own intellectual creation where free and creative choices are made and an expression identifiable with sufficient precision and objectivity[24]. Crucially, the Court ruled that EU member states cannot condition copyright protection on a design generating a significant aesthetic effect or possessing ‘aesthetic merit’. By prohibiting national standards from requiring artistic value alongside originality, Cofemel removed arbitrary hierarchies between fine and applied art, dramatically lowering the barrier to entry for fashion copyright across Europe[25].
This European standard directly collided with the UK’s restrictive statutory framework in Response Clothing Limited[26]. The Intellectual Property Enterprise Court (IPEC) considered a copyright claim over a wave-patterned jacquard fabric design that the defendant obtained from a cheaper supplier. Under the UK Copyright, Designs and Patents Act 1988 (CDPA), fashion items must fall under strict statutory categories, specifically ‘works of artistic craftsmanship’, which historically carried an implied level of aesthetic merit[27]. While the IPEC successfully classified the fabric design as a protectable work of artistic craftsmanship to find infringement, the judgment highlighted a post-Brexit dilemma. UK courts face the complex challenge of balancing the restrictive definitions of domestic law with the sweeping Cofemel precedent which demands that objective originality remain the sole condition for copyright protection.
Critical Analysis and Findings
The current state of fashion copyright reveals a deep, systemic divergence across jurisdictions, jeopardising the legal security of physical garments. On one side of the Atlantic, United States jurisprudence remains strictly wedded to rigid physical and conceptual separability thresholds reinforced by Star Athletica. Under the US framework, pictorial, graphical and sculptural protections[28] are strictly limited by the useful article doctrine because copyright does not protect articles of clothing with an intrinsic utilitarian function[29]. On the contrary, while the EU and UK have shifted toward an objective originality standard under Cofemel, creators remain heavily constrained by strict statutory categories of domestic legislation, such as the UK’s CDPA 1988[30]. Furthermore, an analytical examination shows that these historical frameworks are rendered outdated by the increasing use of generative AI within the fashion industry, which has only exacerbated the lack of copyright protections available for fashion articles[31]. Legally, the US Copyright Office affirms that neither prompts nor their outputs qualify for ‘copyright protection because they do not contain sufficient human creativity;[32]. This creates substantial conceptual strain when trying to protect new design variations, as protection is determined only on a case-by-case basis requiring high degrees of human contribution. Additionally, generative AI platforms have the capacity to create logos, brand names and designs in seconds[33]. This means that legacy legal frameworks designed for human authorship are fundamentally incapable of regulating the automated speed and massive scale of digital infringement.
These legal gaps have serious policy implications, resembling a regressive tax on independent and emerging designers. Because copyright protection for the physical cut and structure of apparel is functionally non-existent under utilitarian exclusions, independent creators are left defenseless against fast-fashion copycats. Emerging designers cannot easily transition to alternative intellectual property regimes. Design patents are the least used IP protection for fashion designers because they are expensive[34], tedious and take a long time to obtain[35]. Due to the fast-changing nature of the fashion industry and the rise of fast-fashion, designs and patterns are usually short lived, meaning lengthy patent protections often come too late, making them too slow and uncertain to be relevant for independent creators. While legacy luxury houses can absorb these inefficiencies or rely on extensive trade dress protections for handbags, footwear, and jewellery, emerging independent designers lack the capital to survive this landscape[36]. As a result, the ongoing failure of traditional copyright regimes to accommodate fashion garments does not promote innovation. Instead, the status quo systematically suppresses independent creators, restricting genuine diversity and economic sustainability across the creative industries.
Conclusion
Current copyright frameworks remain fundamentally inadequate for protecting three-dimensional fashion designs because they rely on old, antiquated definitions of utility. In answering the central research question of this study, it is evident that contemporary intellectual property laws fail to offer balanced security. Whilst two-dimensional fabric prints remain legally safe, complete three-dimensional fashion garments are left largely unprotected against commercial imitation. Evolving market realities, such as the rapid rise of clothing dupes and automated digital creation have exposed the severe limits of forcing modern clothing design into rigid historical boxes. To address this systemic vulnerability, this article proposes a specialised ‘sui generis’ international legal framework. By offering a custom, intermediate copyright option tailored specifically to garment cuts and silhouettes, this proposed reform would successfully bridge the gap between fleeting design rights and regular copyright lifetimes. Ultimately, upgrading these old standards requires more than merely modifying the technical wording. It is an essential modern evolution required to protect creative diversity, secure economic fairness and correctly evaluate the physical structures of fashion design.
Bibliography:
Journal Articles:
Chamon M, ‘The Sui Generis Framework for Implementing the Law of EMU: A Constitutional Assessment’ in Losada F and Tuori K (eds), The Law of the Economic and Monetary Union: Complementing, Adapting or Transforming the EU Legal Order?
Chrysostom Z and Jung Y, ‘How Brands Use Gen-AI in Fashion to Design Their Collections’ (Plug and Play, 24 February 2025) https://www.plugandplaytechcenter.com/insights/how-brands-use-gen-ai-in-fashion-todesign-their-collections
‘Design Patents are a Poor Match for High Fashion’ (R Street Institute, 5 March 2014) https://rstreet.org
Evans B, ‘Registered vs Unregistered Design Rights: What is the Difference?’ (Harper James, 9 January 2024) https://harperjames.co.uk/article/registered-and-unregistered-design-rights/
Kumar G, ‘The Doctrine of Conceptual Separability in Copyright’ (iPleaders, 2 February 2021) https://blog.ipleaders.in/doctrine-conceptual-separability-copyright
Mendez Andrade N, ‘Threads of Protection: Intellectual Property Protections for Fashion Designs in the Age of Generative AI’ (2026) 21(2) Wash JL Tech & Arts Art 3
Raustiala K and Sprigman C, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Va L Rev 1695-1717
Wheeler BM, ‘Trademarks in the Age of AI: The Emerging Legal Battlefield for Brand Owners and Users of Generative AI’ (AALRR, 23 June 2025) https://www.aalrr.com/Business-Law-Journal/trademarks-in-the-age-of-aithe-emerging-legal-battlefield-for-brand-owners-and-users-of-generative-ai
Legal Cases:
Bonz Group (Pty) Ltd v Cooke [1994] 3 N.Z.L.R
Case C-683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV EU:C:2019:721
Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC 148 (IPEC), [2020] WLR(D) 88
Star Athletica, LLC v Varsity Brands, Inc 580 US 405, 3-17 (2017)
Legislation/ Statutes:
Copyright, Designs and Patents Act 1988
Foreign Legislation Section:
Copyright Act of 1976 17 US Code (US)
Copyright Act of 1976 17 US Code § 101 (US)
Spanish Unfair Competition Act
Secondary sources:
‘Bristows’ <https://www.bristows.com/viewpoint/articles/cofemel-v-g-star-raw-c-683-17-and-its-effect-on-uk-copyright-law-before-and-after-brexit/> <https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1367&context=wjlta> accessed 5 June 2026.
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US Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (2025) https://www.copyright.gov/ai/copyright-and-artificial-intelligence-part-2-copyrightabilityreport.pdf
[1] Merijn Chamon, ‘The Sui Generis Framework for Implementing the Law of EMU: A Constitutional Assessment’ in Fernando Losada and Klaus Tuori (eds), The Law of the Economic and Monetary Union: Complementing, Adapting or Transforming the EU Legal Order? III.
[2] See generally Copyright, Designs and Patents Act 1988, s 4; Copyright Act of 1976 17 US Code § 101.
[3] Copyright Act of 1976 17 US Code § 101.
[4] ‘SUPREME COURT of the UNITED STATES’ (2016) <https://www.supremecourt.gov/opinions/16pdf/15-866_0971.pdf> accessed 5 June 2026.
[5] ibid
[6] Copyright, Designs and Patents Act 1988 s 4(1)(a).
[7] CDPA, s 4(1)(c).
[8] Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC 148 (IPEC), [2020] WLR(D) 88.
[9] Case C-683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV EU:C:2019:721.
[10] CDPA, s 4 (1)(c)
[11] Bonz Group (Pty) Ltd v Cooke [1994] 3 N.Z.L.R.
[12] Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Va L Rev 1695.
[13] ibid
[14] Gaurav Kumar, ‘The Doctrine of Conceptual Separability in Copyright’ (iPleaders, 2 February 2021) <https://blog.ipleaders.in/doctrine-conceptual-separability-copyright> accessed 4 June 2026.
[15]Star Athletica, LLC v Varsity Brands, Inc 580 US 405, 411 (2017).
[16] Spanish Unfair Competition Act, article 11.
[17] ‘Fast Fashion and Intellectual Property: When Is It Considered Copying or Inspiration? | Vogue College of Fashion’ (Vogue College of Fashion2025) <https://www.voguecollege.com/articles/madrid/fast-fashion-and-intellectual-property-when-is-it-considered-copying-or-inspiration/> accessed 4 June 2026.
[18] ibid
[19] Jill Bainbridge, ‘Registered vs Unregistered Design Rights: What Is the Difference?’ (Harper James9 January 2024) <https://harperjames.co.uk/article/registered-and-unregistered-design-rights/> accessed 7 June 2026.
[20] ibid
[21]Star Athletica, LLC v Varsity Brands, Inc 580 US 405, 3-17 (2017).
[22] ibid
[23] Case C-683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV EU:C:2019:721.
[24]‘Bristows’ <https://www.bristows.com/viewpoint/articles/cofemel-v-g-star-raw-c-683-17-and-its-effect-on-uk-copyright-law-before-and-after-brexit/> accessed 6 June 2026.
[25] Case C-683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV EU:C:2019:721.
[26] Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC 148 (IPEC), [2020] WLR(D) 88.
[27] CDPA, s4(1)(c)
[28] 17 U.S.C. §§ 101-102.
[29] ‘Useful Articles, U.S. COPYRIGHT OFFICE, Https://Www.copyright.gov/Register/Va-Useful.html [Https://Perma.cc/78V5-RCFU] (Last Visited Dec. 30, 2025 ’.
[30] Case C-683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV EU:C:2019:721.
[31] ‘Zoë Chrysostom & Yoobin Jung, How Brands Use Gen-AI in Fashion to Design Their Collections, PLUG and PLAY (Feb. 24, 2025), ’ <https://www.plugandplaytechcenter.com/insights/how-brands-use-gen-ai-in-fashion-todesign-their-collections%20[https://perma.cc/4KK2-Y63F].> accessed 3 June 2026.
[32] ‘See U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability, U.S. COPYRIGHT OFFICE (2025), Https://Www.copyright.gov/Ai/Copyright-And-Artificial-Intelligence-Part-2-CopyrightabilityReport.pdf [Https://Perma.cc/FXA6-PYQM]. At 18’.
[33]‘Brian M. Wheeler, Trademarks in the Age of AI: The Emerging Legal Battlefield for Brand Owners and Users of Generative AI, AALRR, (June 23, 2025), ’ <https://www.aalrr.com/Business-Law-Journal/trademarks-in-the-age-of-aithe-emerging-legal-battlefield-for-brand-owners-and-users-of-generative-ai%20[https://perma.cc/A8N3-NXAU].> accessed 3 June 2026.
[34] ‘Digital Commons’ (4 January 2026) <https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1367&context=wjlta> accessed 7 June 2026.
[35] ‘Design Patents are a Poor Match for High Fashion’ (R Street Institute, 5 March 2014) rstreet.org accessed 6 June 2026.
[36] ‘Digital Commons’ (4 January 2026) <https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1367&context=wjlta> accessed 5 June 2026.
