Authored By: Kayleona Hill
University of Central Oklahoma
I. Introduction
Fashion is a trillion dollar industry around the world that thrives off of creativity, artistry, and innovation, but the protection afforded by American copyright laws for the individuals who create these designs remains relatively weak. Despite fashion being an area in which artistry plays a part, the majority of clothes are considered “useful articles” under 17 U.S.C. § 101, which means the functionality of most clothing prevents them from being protected through copyright. In turn, designers are forced to rely on other intellectual property law systems, such as trademarks and trade dress, along with rare instances of design patents. This fragmented regime has proved increasingly insufficient as fast-fashion businesses quickly recreate designer and independent clothing, getting these copies into the hands of consumers ahead of the time when the original designer has been able to capitalize fully on his or her creativity. This article claims that the existing legal framework for protecting copyright in fashion designs in the United States fails because of the “useful article” exception, which denies copyright coverage of much creativity. While there exist intellectual property doctrines available to address this problem, changes in legislation are needed to strike an adequate balance between innovation and competition. The article first explores the existing legal framework for fashion copyright, followed by discussion of problems caused by the “useful article” exception and the case for modest statutory reform.
II. The Existing Legal Framework
A. Copyright’s Useful Article Doctrine
The Copyright Act states that “original works of authorship fixed in any tangible medium of expression, including … pictorial, graphic, and sculptural works” are subject to copyright protection. 17 U.S.C. § 102(a). Notwithstanding, this provision does not offer copyright protection to any creative object. A distinguishing feature of the Copyright Act is the differentiation between artwork and functionality, which means that copyright protection covers only expressive but not utilitarian aspects. For the fashion industry, this principle plays a key role since clothing is regarded as “useful articles” under 17 U.S.C. § 101. A “useful article” is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” As it can be easily inferred from this definition, the main function of a piece of clothing is protecting the body and therefore its general form, cut, and construction are viewed as functional.
The major exception to the general rule is the principle of separability. According to § 101, artistic elements included in a useful article can be protected by copyright only if they can “be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” The same point of view was expressed by the U.S. Copyright Office, which noted that although the design of the clothing cannot enjoy copyright protection as such, the separable artistic features may enjoy such protection as they can exist independently of the functional feature of the garment. Therefore, decorative elements such as surface designs, embroidery, graphic art, ornamental prints, etc., can be subject to copyright despite the fact that clothing cannot be protected by copyright. It should also be noted that the Copyright Office always considers that copyright applies to artistic elements of the features and not to the design of the clothing at all. The Office acknowledges that clothing is a classic example of the useful article and thus cannot be protected under copyright. See U.S. Copyright Office, The Register’s Report: Copyright Protection for Fashion Design 2–5 (2006).
In Star Athletica, LLC v. Varsity Brands, Inc., the Supreme Court reemphasized this rule through its declarations that the designs that decorated the cheerleading uniforms were actually copyrightable, as their decorative designs could be identified separately from their utilitarian purpose and could stand alone as independent works of art. 580 U.S. 405, 418–20 (2017). While the case Star Athletica cleared up the confusion about the separability rule, it did not confer copyrights to the garments themselves but rather emphasized that only separable artistic designs and not functional designs are copyrightable.
B. Alternative Intellectual Property Protections
While copyright law affords limited protection to fashion designs, designers can utilize other intellectual property laws to protect their products, such as trademarks, trade dress, and design patents. However, this legal remedy seeks to protect an interest that differs from that of the creative design of the fashion item, failing to provide a sufficient response to design piracy. Trademark law offers protection to indicia of the commercial source, while trade dress law allows for the protection of the appearance of the product when customers perceive the appearance as a characteristic of the brand name. For instance, in Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc., the Second Circuit ruled that the red lacquered outsole designed by Christian Louboutin qualified for trade dress protection since it had acquired secondary meaning. Trade dress protection, however, demands significant public recognition, which means that new designers cannot afford the same level of protection due to inadequate market presence and financial means.
Similarly, design patents are not a complete solution since they only cover novel and ornamental designs. Nevertheless, the long process of obtaining a patent, which usually takes between eight to twenty months, makes the system completely unworkable within the framework of fast-moving seasonal production cycles in the fashion industry. Furthermore, the doctrines of trademarks, trade dresses, and design patents only cover some specific features of the designer’s creations, but do not provide comprehensive coverage for the artistic expression embedded in the creation. According to both Jung and Zerbo, there are important procedural and substantive limitations associated with the doctrines that make designers, especially the new ones, susceptible to the fast fashion copying.
III. Why Current Law Falls Short
A. Emerging Designers Bear the Greatest Burden
While the lack of wide-spread copyright protections is a problem for the fashion industry as a whole, it disproportionately affects emerging designers. Unlike luxury fashion houses, which have large budgets, brand awareness, and multiple IPs, young designers rely on the commercial success of one collection to launch their careers. According to Jung, the fashion industry is built in the environment of “low-IP regime,” which allows rampant piracy of designs without any real chance for the author to protect his/her rights. This disparity is particularly pronounced when one takes into account the development of the fast fashion industry in the form of companies such as Zara, Forever 21, and now Shein, whose business strategy involves quick production of affordable copies of runway trends. Thanks to the availability of high-quality digital photography and social media, designs can be reproduced shortly after they become available and original authors have a small chance to cash out on their inventions.
However, it is not only the problem of copying and imitation but much more. As pointed out by Zerbo, fast fashion companies are benefiting from the lack of costs of original designs while making use of the commercial attractiveness brought about by independent designers. It means that the latter become deprived of the competitive advantage inherent to any creative activity while being unable to make use of lucrative collaborations and licensing with larger firms that have no reason for cooperating officially with the former as cheap copies have already been made. At the same time, it leads to the undermining of a designer’s reputation since the element of exclusiveness and uniqueness becomes lost in the process while reducing consumer demand and revenue. The existing legal regulation discourages innovation rather than promoting it by means of fair competition and making innovators face greater economic risks than copyists who are actually gaining commercially.
B. Creativity Versus Competition
Those opposing the expansion of the protection of fashion designs under copyright law claim that the minimal intellectual property laws protecting the fashion industry are one of the reasons why the industry has seen such tremendous success. Most importantly, Raustiala and Sprigman assert that fashion flourishes under a “low-IP regime” in which imitation and copying of successful designs occur rapidly and force the designers to continue innovating. In addition, opponents of the Innovative Design Protection Act claimed that awarding copyrights to fashion designs would increase lawsuits, raise production costs, and eventually restrict consumers’ access to affordable clothing. Under this framework, fast-fashion companies serve an important function by offering high fashion to those who otherwise would not be able to afford such luxury products.
These arguments may hold some validity, but they cannot overshadow the necessity to maintain proper incentives for innovation. Influence has been an integral part of fashion design for a long time already; however, there exists a clear difference between borrowing from other designs and creating copies that are close to being the same for commercial purposes. The current law favors companies whose competitive edge lies in quick imitation, and independent designers do not have the chance to reap any rewards for their innovations. While accessibility serves the consumer well, it does not justify the punishment of those who create the trends that the entire industry is based on. Copyright can be limited to certain extents and will neither stop competition nor deny the possibility of further development of ideas. In fact, limited copyright will help to keep the balance intended by the copyright law.
IV. Conclusion
Ultimately, the present system for protecting copyright in fashion designs is inadequate in recognizing fashion as a genuine artistic form of expression in today’s times. Even though the Copyright Act gives protection to all those works of authorship which are original, the useful article doctrine keeps most fashion designs out of protection, and fashion designers have to depend upon trademark law, trade dress and design patents which provide protection to only certain aspects of their design work. As explained in this article, these other forms of intellectual property are insufficient to cater to the issue of design piracy, especially when it comes to new fashion designers lacking sufficient funds and recognition in the market to enforce their right.
In place of granting sweeping monopolies on apparel, the United States Congress may opt for more limited federal protection comparable to that of the Innovative Design Protection Act. The new copyright protection would limit itself to protecting original, distinguishable, and nonfunctional fashion designs while still allowing for the public to be inspired by current trends in the industry and keeping the competitive nature of the market alive. In light of this, copyright law is in dire need of being updated in order to serve its true constitutional intent and be more compatible with the times.
Absolutely. Below is a Bluebook (20th ed.) citation list organized by authority type. Since this is for the end of your paper (rather than a Works Cited page), this format is appropriate and includes only the authorities actually used in your essay and supporting materials.
Reference(S):
United States Constitution
U.S. Const. art. I, § 8, cl. 8.
Federal Statues
17 U.S.C. § 101 (2022).
17 U.S.C. § 102(a) (2022).
17 U.S.C. § 106(1) (2022).
17 U.S.C. § 113(a) (2022).
Legislation
Innovative Design Protection Act of 2012, S. 3523, 112th Cong. (2012).
Cases
Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., 696 F.3d 206 (2d Cir. 2012).
Mazer v. Stein, 347 U.S. 201 (1954).
Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017).
Government Materials
U.S. Copyright Office, The Register’s Report: Copyright Protection for Fashion Design (2006).
Secondary Sources
Jung, Mary Jane. Weaving Copyright into Fashion: How Copyright Protection Can Change the Fashion Industry for the Better (2025).
Raustiala, Kal & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006).
Zerbo, Julie, Protecting Fashion Designs: Not Only “What?” but “Who?”, 6 Am. U. Bus. L. Rev. 595 (2017).
