Stitched Out: The Inadequacy of Copyright Law in Protecting Independent Fashion Designers in the Age of Fast Fashion

ABSTRACT

This article examines whether the existing copyright frameworks, with particular focus on Indian law and comparative references to United States and European Union (EU) jurisprudence, provide adequate legal protection for independent fashion designers against the systematic copying practices of the fast fashion industry. The main research question is whether the structural distinction between copyright protection and design law, particularly the fifty-article industrial application threshold under section 15 of the Indian Copyright Act of 1957, operates as an unjustifiable barrier to justice for independent creators. Through legal analysis and a close reading of case laws, this article finds that the current frameworks are inadequate. The law structurally favours established brands equipped with trademark portfolios over independent designers whose creative output is their primary commercial asset. The article recommends targeted legislative reform, including revision of the fifty-article threshold and introduction of an automatic unregistered design right modelled on the EU design framework.

Keywords: Fast Fashion, Copyright Protection, Design Rights, Independent Fashion Designers, Design Piracy.

1.  INTRODUCTION

In 2021, Indian textile designer Aneela Hoey documented on social media that a print she had hand-drawn – a delicate, repeat pattern of small animals, an original and identifiable work – had appeared, near identically, on a garment sold by an international fast fashion retailer within weeks of her posting it. She had no registered design, no established trademark and no enforceable remedy. The retailer had acted, in the strict sense, lawfully[1].

This is not an isolated incident. It is the predictable consequence of a legal architecture that treats fashion design as neither fully art nor fully industry, and in that ambiguity, protects it as neither. Copyright law, the primary vehicle for protecting original creative expression in most jurisdictions, was designed precisely to protect work of original authorship from unauthorised reproduction. Yet fashion design sits in a legal grey zone. Garments are functional objects, and most copyright systems expressly exclude utilitarian articles from protection. The gap this creates is not neutral in its effects. It disproportionately harms independent and emerging designers, who lack the trademark recognition and litigation resources available to established luxury houses[2]. Imitation may sustain the industry’s aggregate trend economics, but it destroys individual creative careers, particularly those of designers whose primary asset is original creative output rather than institutional brand equity.

The article revolves around the question: Does existing copyright law provide adequate protection for independent fashion designers against fast fashion imitations, and if not, what reforms are necessary? The question is beyond mere academics. The global fashion industry is worth over three trillion dollars[3], and its creative vitality depends on a constant supply of original design. If the legal framework systematically fails to protect the designers who generate that originality, the long-term consequence is a narrowing of the creative ecosystem. Such a system benefits fast fashion aggregators at the direct expense of those whose labour makes the industry worth copying in the first place.

2. BACKGROUND AND CONCEPTUAL FRAMEWORK

Copyright law protects original works of authorship from the moment of creation, regardless of registration. Its philosophical basis is dual: rewarding creative labour and incentivising future production through temporary exclusivity[4]. Both rationales apply with equal force to fashion design. A hand-drawn textile print represents genuine creative effort, and the prospect of its appropriation by a better-resourced competitor plainly discourages its creation.

Copyright law also draws a fundamental distinction between artistic works and functional or “useful” articles. Fashion sits uncomfortably between these categories, as a garment is simultaneously an aesthetic object and a functional one. Most legal systems resolve this tension by treating the functional character as dominant, excluding or severely limiting copyright in fashion design.

In India, the Copyright Act of 1957 protects “artistic works” including drawings and works of artistic craftsmanship[5]. Section 15 creates a critical exception to this[6]. Where a design is capable of registration under the Designs Act of 2000 but has not been registered, copyright ceases once the design is applied industrially more than fifty times. Once the threshold of fifty articles is crossed, protection lies only in the Designs Act which requires prior registration and carries a maximum term of fifteen years[7], far below the maximum term protection of sixty years provided under copyright law[8]. Most independent designers have neither the knowledge nor the resources to register in advance and seek protection.

In the United States, the “useful article” doctrine restricted copyright fashion until the Supreme Court’s decision in Star Athletica LLC v Varsity Brands Inc.[9], which introduced the “separability test”. Artistic elements of a useful article may receive copyright protection if they can be perceived as art independent of the article’s functional aspects.

The European Union offers a contrasting model. The Community Design Regulation provides automatic unregistered protection for three years from first public disclosure, without any technical registration requirement[10]. This is specifically calibrated in line with fashion’s rapid creative cycle[11].

3. LEGAL ANALYSIS

3.1 The Section 15 Trap

Section 15 creates a structural paradox. Copyright protection is lost precisely when it becomes commercially valuable. An independent designer who creates an original print enjoys full copyright at the point of creation. Once she has produced or sold fifty unit, achievable within days for any designer with a social media following, copyright automatically ceases. The Designs Act then offers the only avenue, but registration must precede public disclosure. Since most designers post their work online before reaching fifty sales, registration is simultaneously unavailable and the copyright is gone[12]. The result is no enforceable IP protection at the precise moment the work has demonstrated market value.

The policy rationale for Section 15 preventing copyright monopolisation of mass industrial production might have been reasonable when the provision was drafted in 1957, but is obsolete in 2026. A designer selling fifty garments globally through Instagram and direct-to-consumer platforms remains an independent artisan. The statute makes no distinction between a multinational textile manufacturer producing fifty thousand metres of printed fabric and a sole-trader designer producing fifty hand-sewn garments. This distinction is the main issue.

The obsolete nature of Section 15 is compounded by its intersection with the Designs Act’s registration requirements. Registration under the Designs Act must be applied for before the design is made public. For most independent designers operating in a social media-driven market, public disclosure is an integral part of building commercial momentum. Posting a design on Instagram before it goes into production is not negligence, it is standard practice. The registration window and the commercial reality are structurally incompatible. A designer who registers before posting forgoes the audience-building that makes sales possible and a designer who posts before registering forfeits the only remaining avenue of protection. The law, in effect, presents independent designers with a choice between commercial viability and legal protection, an option that should not have to be made.

The adequacy of Section 15 therefore turns on a question of legislative intent versus contemporary application. In a world where law follows the merchant, one must ask whether the policy rationale of preventing monopolisation of industrial production actually applies to a designer operating in the digital direct-consumer environment? It does not[13].

3.2 The Separability Test: Progress and Its Limits   

The Star Athletica separability test extended copyright to surface decoration in fashion, such as, printed patterns, embroidered motifs and woven pictorial elements. This was real progress, for designers whose primary creative output is distinctive printed fabric gained a workable legal framework.

The test, however, has a critical limitation particularly acute in fashion. It protects surface art but not structural design. The cut of a garment, the draping of a silhouette, the construction of a sleeve, these elements define much of fashion’s creative vocabulary but are inherently functional. They cannot be “perceived as art separate from the garment” because they are inseparable from its form. Fast fashion copying of structural elements, which is pervasive, remains entirely unaddressed.

This reflects a deeper problem with applying the art-utility distinction to fashion. It presupposes a conceptual separation between decoration and construction that the design process itself does not recognise. For a trained fashion designer, the choice of a bias cut is simultaneously a structural decision and an aesthetic one, hence, the line between what a garment does and what it expresses cannot be clearly drawn. A legal framework that protects prints but not silhouettes, surface motifs but not innovative construction, privileges one dimension of fashion creativity while leaving the other entirely exposed. It serves the interests of imitators rather than creators and reflects a misunderstanding of the discipline it purports to govern.

3.3 The Power Asymmetry Problem

Even where a legal remedy exists in theory, it is practically inaccessible for most independent designers. Copyright infringement litigation in the Delhi High Court realistically costs several lakhs of rupees at minimum[14]. For an independent designer, these costs are prohibitive. For a fast fashion retailer with multi-billion-dollar revenues, the expected costs of any individual infringement claim, discounted by the low probability that a designer can afford to sue, approaches zero. The system creates no real deterrent.

The Piracy Paradox thesis holds that copying is functional for fashion at an industry level by accelerating trend diffusion. This may hold for luxury houses whose value lies in brand heritage rather than individual designs. It does not hold for independent designers who possess no trademark recognition and whose commercial viability depends on the exclusivity of specific creative output. For them, copying is not trend diffusion, it is appropriation without credit or compensation.

4. CASE LAW DISCUSSION

4.1 Star Athletica LLC v Varsity Brands Inc. [580 US 405 (2017)][15]

Varsity Brands registered copyright in two-dimensional designs, the chevrons, stripes, colour blocks, applied to its cheerleading uniforms. Star Athletica produced uniforms with substantially similar designs. The Supreme Court, by a 6-2 majority, held that the decorative elements were copyrightable. They could be perceived as pictorial or graphic art independent of the uniform, and would qualify for copyright protection if imagined separately[16].

The principle established is that surface decoration on garments can receive copyright protection where the artistic element is conceptually separable from the article’s functional character. This overturned earlier decisions that had refused copyright to virtually all fashion design.

The case is relevant in two respects. First, it demonstrated that a well-crafted separability test can extend copyright to fashion without monopolising functional designs. Second, it exposes the boundary of what such a test achieves. The stripes and chevrons at issue are quintessentially decorative. The decision says nothing about structural design, silhouette or construction, leaving the most common forms of fast fashion copying entirely unaddressed.

4.2 Ritika Private Ltd. v Biba Apparels Pvt. Ltd. [CS(OS) 182/2011 (Delhi HC, 23 March   2016)][17]

Ritika claimed copyright in embroidered salwar kameez designs and sought to restrain Biba Apparels from reproducing substantially similar designs. Biba argued the designs had lost copyright under Section 15, having been industrially applied more than fifty times.

The Delhi High Court dismissed the claim, applying Section 15 strictly. Once the fifty-units threshold was crossed, copyright ceased to subsist regardless of the work’s aesthetic originality. The Court held that the fifty-units threshold was a legislative policy decision not amenable to judicial reinterpretation[18].

This case confirms that Section 15 operates as an absolute cut-off, not a contextual discretion. Critically, the Court applied the rule mechanically without engaging with whether its underlying policy rationale of preventing monopolisation of industrial production applied to the facts before it. This mechanical approach signals that meaningful change requires legislative intervention, not judicial creativity.

4.3 Fenty v Arcadia Group Brands Ltd. [(2015) 1 WLR 3291][19]

Topshop’s parent company sold a t-shirt bearing a photograph of Rihanna taken by a third-party photographer. The Court of Appeal held this amounted to passing off. A significant proportion of consumers would understand the garment as implying Rihanna’s endorsement causing damage to her goodwill.

The relevance lies not in the holding but in what it reveals about the limits of copyright as a fashion protection tool. Rihanna secured a remedy not through copyright in a design, but through passing off, which requires an established commercial reputation. An independent designer without that reputation could not have relied on this cause of action[20]. This illustrates a consistent pattern, where practically available legal remedies in fashion disputes are systematically better suited to established brands than to independent creators.

5. CRITICAL ANALYSIS AND FINDINGS

The analysis above yields three interconnected findings that describe a legal system structurally misaligned with the interests of independent creative producers in fashion.

First, the law is institutionally biased towards incumbents. Copyright protection for fashion design is practically available only to designers who can afford pre-emptive registration, who have established commercial reputation sufficient for passing off or whose brand recognition substitutes for copyright through trademark law. All three conditions systematically favour established operators over newcomers. The independent designer, whose primary asset is creative originality rather than institutional reputation, is the person the system is least equipped to protect. Independent designers are the primary source of creative innovation in fashion. When the law fails to protect them, it fails the industry’s creative future.

Second, Section 15’s fifty-units threshold is a legislative anachronism that has become actively harmful. Drafted for factory-scale industrial production, it does not contemplate a world in which a designer can achieve fifty global sales within days of posting a design online while retaining every characteristic of an independent artisan. The legislature should reconsider this threshold with reference to contemporary fashion commerce, and specifically whether the provision ought to apply to all designers whose production volumes remain genuinely artisanal. A threshold of five hundred units, or a turnover-based test, would more accurately distinguish industrial producers from creative independents[21].

Third, the EU Community design framework offers a workable model that India could adopt. Automatic unregistered protection arising on first public disclosure, without registration cost or burden, is specifically calibrated to fashion’s rapid creative cycle. It acknowledges that designers produce work at volume and speed incompatible with pre-registration requirements, and provides a reasonable exclusivity window in which to realise commercial value before designs enter the public domain. The three-year protection period is not so long as to chill competition or impede trend diffusion, it is long enough to allow designers to capitalise on original work before it is copied at scale.

The current policy implication is a chilling effect on design innovation. If the legal system provides no effective remedy for copying, the rational response for an independent designer is either to absorb copying as a cost of doing business, thereby subsidising better-resourced imitators, or to exit the market, depleting the creative talent pool from which fashion’s genuine innovation emerges. The law, as it stands, does not merely fail to protect designers, it actively enables their exploitation.

6. CONCLUSION

Upon examination of whether the existing copyright framework adequately protects independent fashion designers against fast fashion copying, the answer is plainly no.

In India, the fifty-units industrial application threshold under Section 15 of the Copyright Act of 1957 strips copyright from designers at the moment of commercial success, leaving Design Act registration as the only recourse, a remedy structurally unavailable to most independent designers who publish their work before reaching that threshold. In the United States, the Star Athletica separability test protects surface decoration but leaves structural design entirely unprotected. In most jurisdictions, even theoretical remedies are practically inaccessible due to litigation costs[22].

Two reforms are recommended. First, Section 15 should be amended to exclude designers whose total production remains below a threshold genuinely indicative of industrial operation. Second, India should introduce an automatic unregistered design right modelled on the EU framework, providing three years of protection from first public disclosure without registration.

As fashion increasingly migrates to direct-to-consumer digital platforms, the law must evolve to recognise that independent designers are not a peripheral category but the engine of the industry’s creative renewal. The law, as presently constituted, stitches them out.

REFERENCE(S):

1. Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005).
2. Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Virginia Law Review.
3. McKinsey & Company and The Business of Fashion, The State of Fashion 2024 (McKinsey & Company 2024).
4. Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, entered into force 5 December 1887) 828 UNTS 221, art 5(2).
5. Copyright Act 1957 (India).
6. Designs Act 2000 (India).
7. Star Athletica LLC v Varsity Brands Inc. 580 US 405 (2017).
8. Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs [2002] OJ L 3/1, art 11(1).
9. Annette Kur and Marianne Levin, European Intellectual Property Law: Text, Cases and Materials (2nd edn, Edward Elgar 2019).
10. Sanjay Bharati, ‘The Intersection of Copyright and Design Law in India: A Critical Analysis of Section 15’ (2020) 25 National Law School of India Review
11. Federation of Indian Chambers of Commerce and Industry (FICCI), Intellectual Property Rights in India: An Empirical Study on Enforcement Costs and Judicial Delays (FICCI 2019).
12. Copyright Act 1976 (US), 17 USC § 101.
13. Ritika Private Ltd. v Biba Apparels Pvt. Ltd. CS(OS) 182/2011 (Delhi HC, 23 March 2016).
14. Microfibres Inc v Girdhar & Co (2009) 40 PTC 519 (Del DB).
15. Fenty v Arcadia Group Brands Ltd. [2015] 1 WLR 3291.
16. Harrods Ltd v Harrodian School Ltd [1996] RPC 697 (CA).
17. Law Commission of India, Proposed Amendments to the Copyright Act 1957 in the Context of Digital Technology (Report No 267, Ministry of Law and Justice 2017).
18. World Intellectual Property Organization (WIPO), World Intellectual Property Report 2023: Access to Justice for Intellectual Property Rights Holders (WIPO 2023).

[1] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005) 47.

[2] Kal Raustiala and Christopher Sprigman, “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design” (2006) 92 Virginia Law Review 1687, 1692–1694.

[3] McKinsey & Company and Business of Fashion, The State of Fashion 2024 (McKinsey & Company 2024) 8–10.

[4] Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, entered into force 5 December 1887) 828 UNTS 221, art 5(2).

[5] Copyright Act 1957 (India) s 2(c).

[6] Copyright Act 1957 (India) s 15(2).

[7] Designs Act 2000 (India) s 11(1).

[8] Copyright Act 1957 (India) s 22.

[9] Star Athletica LLC v Varsity Brands Inc 580 US 405 (2017).

[10] Council Regulation (EC) 6/2002 of 12 December 2001 on Community Designs [2002] OJ L3/1, art 11(1).

[11] Annette Kur and Marianne Levin, European Intellectual Property Law: Text, Cases and Materials (2nd edn, Edward Elgar 2019) 387–390.

[12] Designs Act 2000 (India) s 4.

[13] Sanjay Bharati, “The Intersection of Copyright and Design Law in India: A Critical Analysis of Section 15” (2020) 25 National Law School of India Review 1, 12–15.

[14] Federation of Indian Chambers of Commerce and Industry (FICCI), Intellectual Property Rights in India: An Empirical Study on Enforcement Costs and Judicial Delays (FICCI 2019) 22–25.

[15] Supra note 9.

[16] Copyright Act 1976 (US) 17 USC § 101.

[17] Ritika Private Ltd. v Biba Apparels Pvt. Ltd. CS(OS) 182/2011 (Delhi HC, 23 March 2016).

[18] Microfibres Inc v Girdhar & Co (2009) 40 PTC 519 (Del DB).

[19] Fenty v Arcadia Group Brands Ltd. (2015) 1 WLR 3291.

[20] Harrods Ltd v Harrodian School Ltd [1996] RPC 697 (CA).

[21] Law Commission of India, Proposed Amendments to the Copyright Act 1957 in the Context of Digital Technology (Report No 267, Ministry of Law and Justice 2017).

[22] WIPO, World Intellectual Property Report 2023: Access to Justice for Intellectual Property Rights Holders (WIPO 2023).