Authored By: Sofia Aitken
Universidad de los Andes
INTRODUCTION
Fashion has long resembled a swinging pendulum, oscillating between maximalist displays of branding and periods defined by subtle designs and visual restraint. These recurring transformations have reshaped the legal landscape of fashion law, particularly regarding copyright and the capacity of luxury brands to secure legal protection for their design pieces. This issue becomes especially pronounced within the philosophy of quiet luxury, where creations often rely on subtlety rather than highly unconventional design elements that are prone to satisfy the legal thresholds required for protection.
Quiet luxury refers to an emerging consumption philosophy rooted in minimalist design principles, prioritizing high quality materials, understated elegance and timeless aesthetics.[1] In this regard, two principal forces have been identified to explain consumers’ pursuit of quiet luxury.[2] One is masstige luxury.[3] As luxury goods are perceived by a greater number of individuals as attainable across society, consumers turn to alternative forms of distinction. The second concerns sophistication without conspicuous display.[4] Contrary to the long-held assumption that status must be communicated through overt visibility, quiet luxury conveys affiliation with elite social groups through nuanced design markers, often legible primarily to consumers possessing a heightened degree of fashion literacy.
Despite the rapid evolution of the high-end fashion industry and the gradual adaptation of legal systems in certain jurisdictions; comprehensive legislative reform addressing the protection of fashion design remains inadequate. These gaps are especially evident in developing countries such as Colombia, where the legal implications of emerging industry dynamics have not been thoroughly examined. Thus, the article aims to explore: to what extent does copyright law in Colombia provide adequate protection for luxury fashion designs shaped by the rise of quiet luxury?
The article proceeds in four parts. Part I outlines the regulatory structure embedded within the CAN[5] relevant to fashion law, focusing primarily on the technical aspects of the fashion industry, and subsequently, on the copyright protection of fashion designs in Colombia. Part II conducts an analysis of Decision 351 of the Andean Community, addressing the requirements of originality and its application to literary and artistic works. Part III discusses Star Athletica, LLC v. Varsity Brands Inc., 580 U.S. and Cofemel v. G-Star Row. TJUE., to assess the Tribunal’s approach to the protection of high-end fashion designs. Finally, PART IV suggests reforms to the Decision 351 aimed at replacing ambiguity for legal precision, rigid originality thresholds with context-sensitive standards, formalism with practical protection, and regulatory gaps with clearer safeguards for quiet luxury creations.
COLOMBIAN REGULATORY REGIME
Prior to the adoption of the 1991 Constitution and the incorporation of Article 61[6], Colombia —together with Perú, Ecuador, Chile[7] and Bolivia— had already taken steps toward regional economic integration through the Cartagena Agreement[8], which established the Andean Integration process, now known as the Andean Community [CAN]. Within this broader framework of economic cooperation and social coordination among member states, the CAN adopted Decision 351 in 1993, establishing a common regime governing copyright and related rights. This supranational instrument provides extensive protection for works of authorship in the literary, artistic and scientific domains—potentially encompassing certain forms of creative expression originating in the fashion industry. Nevertheless, the protection of copyright in Colombia predates this regional framework. Law 23 of 1982 constituted the country’s first comprehensive statutory regime regulating copyright, laying the foundation for the national protection of author’s rights and intellectual creations.
Moreover, while the term copyright is often used equivalently with derechos de autor, the two concepts arise from distinct legal traditions and embody different underlying philosophies of intellectual property protection. The Anglo-American copyright system primarily focuses on the economic rights associated with the reproduction, distribution and commercial exploitation of creative works.[9] By contrast, the derechos de autor regime —rooted in the civil law tradition— emphasizes the personal relationship between the author and their creation. This framework recognizes the economic and moral rights, which protects the authors’ attribution, divulgation and integrity. In this sense, Colombian copyright law reflects a dual structure that provides broader protection to authors and reinforces the notion that creative works are an extension of the author’s personality.
To date, Colombia has not enacted legislation specifically designed to regulate fashion law. As a result, the protection of fashion creations derives from the broader intellectual property framework established by the CAN and national legislation, complemented by concepts and jurisprudence issued by the Supreme Court of Justice [CSJ], the Superintendence of Industry and Commerce [SIC] and the National Copyright Directorate [DNDA]. That being said, focusing on Decision 351 rather than the trademark regime under Decision 486[10] does not stem from the assumption that fashion designs are inherently easier to protect. Instead, the rationale arises from the characteristics of the quiet luxury movement, which deliberately removes brand identifiers traditionally associated with trademark protection. In the absence of visible indicators of commercial origin, protection must be assessed through the creative expression embodied in the design, therefore, through copyright law.
FASHION DESIGNS: THE PROTECTION OF APPLIED ART IN COLOMBIA
The Colombian fashion industry has experienced significant growth in recent years. International luxury houses such as Louis Vuitton, Carolina Herrera and Dolce & Gabbana have established a presence in the country, while Colombian designers —including Silvia Tcherassi, Pepa Pombo and MAZ Manuel Álvarez— have consolidated their position within the luxury fashion industry. Despite this expansion, the number of brands operating within the luxury sector remains relatively limited when compared to global markets. In this sense, legal scholarship and jurisprudential development concerning the protection of fashion design in Colombia remain comparatively scarce. The resulting absence of a substantial body of precedent complicates the identification of clear legal mechanisms for protecting fashion creations, particularly those whose value lies primarily in their minimalistic expression.
Accordingly, when fashion designs lack visible indicators of commercial origin, copyright law emerges as the appropriate legal alternative for their protection within the Colombian legal system. In this regard, Decision 351 extends protection to works of applied art, defined by the DNDA as artistic creations with utilitarian functions, or incorporated into a useful article as a work of craftsmanship or produced on an industrial scale.[11] Within the luxury fashion sector, craftsmanship entails meticulous attention to detail, authenticity, longevity and artistry in the production of high quality pieces.[12] These characteristics closely align with the concept of works of applied art. Although the DNDA has not explicitly established this direct equivalence, it has recognized that “Designs of handbags, luggage, dresses, shoes, and other elements of the design industry, where they meet the requirements applicable to artistic works, fall within the scope of copyright protection.”[13]
Although this may appear relatively straightforward, for an artistic creation to qualify for copyright protection, it must satisfy three cumulative requirements: i) constitute an intellectual creation; ii) be original; iii) be capable of being disclosed or reproduced in any form or medium.[14] The DNDA defines an intellectual creation as work of authorship produced by a natural person through the exercise of their intellectual, creative and expressive capacities.[15] In the luxury fashion industry, the design process typically begins with the development of preliminary sketches that articulate the conceptual foundation of a garment. This stage involves a series of creative decisions concerning selection, thematic direction, structural composition and color palette, through which the designer translates abstract ideas into a tangible design concept.[16] In this sense, from the moment the designer materializes the intellectual creation embodied in the fashion design, they acquire the moral and economic rights as original copyright owner.
While recognizing a fashion design as an intellectual creation may present little difficulty, satisfying the requirement of originality demands a more careful analysis, especially in relation to garments associated with the quiet luxury movement. To begin with, originality refers to the individuality of the work, that personal imprint or distinctive mark that the author imparts to the creation, rendering it unique in relation to others.[17] The difficulty arises from the requirement that the work must clearly and unmistakably reflect the personal imprint of its author. Within the fashion industry, the application of the concept of originality presents a particularly narrow margin. Fashion creations often draw inspiration from existing garments, aesthetic tradition and prior design practices. Requiring designs to be entirely novel —conceived independently of any preceding references— would constrain creative practice. Designers would be unable to produce basic variations derived from conventional geometric and anatomical structures, an expectation especially problematic in a contemporary context where minimalism and quiet luxury are increasingly valued over maximalist displays.
In practice, fashion design operates through reinterpretation and refinement of existing ideas rather than the production of entirely unprecedented forms. At first glance, this challenge might appear insurmountable. However, foreign regimes suggest otherwise. In France, copyright law[18] extends protection to any original work of authorship of intellectual creation, including fashion designs and runway shows.[19] The French Supreme Court has justified this approach by acknowledging that the fashion industry operates under constant creative demand, which leads to frequent renewals of designs and collections.[20] In this sense, originality should not be understood as equivalent with novelty, but rather as the result of the author’s creative contribution —a fundamentally subjective[21] notion reflecting the personal imprint of the creator—. Therefore, within the fashion industry, reinterpretation may constitute an original expression, whether manifested through variations in color, length, stitching or fabric. Such adaptations qualify as original work as the result is a reflection of the creative choices of the author, regardless of whether the expression is quiet or loud. As has been noted in copyright doctrine, “a subsequent author may adopt her predecessor’s ideas, so long as the form in which she expresses them is her own.”[22]
Finally, the capacity for disclosure and reproduction of fashion designs is understood by Decision 351 as the fixation of the work in a medium that allows its communication or the reproduction of copies of the whole or part of it, by any means or process.[23] In the context of fashion design, the creative idea does not remain confined to the designer’s mind, but materialized through sketches, patterns, prototypes and finished garments presented on runways, photographed, or displayed in retail spaces. Once expressed in such tangible forms, the designs become capable of being communicated and reproduced. Indeed, the process of production demonstrates this capacity. Even within the luxury fashion industry, where garments are often manufactured in limited quantities, designs are nevertheless replicated. Accordingly, luxury fashion designs can qualify for copyright protection under Decision 351.
APPLICABLE CASE LAW DISCUSSIONS
The development of jurisprudence in Colombia on this issue remains limited to date. To substantiate the potential protection of fashion designs under copyright law, it is appropriate to examine relevant decisions rendered by foreign Supreme Courts.
3.1 Star Athletica, LLC v. Varsity Brands Inc., 580 U.S. (2017)[24]
Varsity Brands, a prominent American apparel company in the cheerleading uniform industry, obtained copyright protection under the Copyright Act of 1976 for more than two hundred two-dimensional designs appearing on the surface of its uniforms. Star Athletica, another manufacturer and distributor of cheerleading uniforms, was subsequently sued by Varsity Brands for alleged copyright infringement. While the petitioner argued that “the designs could not be conceptually physically separated from the uniforms, and therefore intelligible for copyright protection”; the Sixth Circuit[25] concluded that Varsity’s designs could be identified separately and therefore capable of existing independently from the uniforms.
With respect to the requirement of separate identification, the Court explained that a useful article must contain a two or three dimensional element that can be perceived, upon observation, as a feature resembling a work of art. Additionally, regarding the requirement of independent existence, the Court further clarified that, once conceptually separated from the useful article, the artistic element must be capable of existing independently and not merely constitute a reproduction of the useful item itself. The Court ultimately ruled in favour of Varsity, holding that a design may qualify for copyright protection as long as the extracted feature can exist independently as art.
Although this case differs from the quiet luxury movement and the manner in which minimalist fashion designs may be protected under the copyright regime, it nevertheless established an important precedent by demonstrating that fashion designs may fall within the scope of copyright protection as works of applied art despite the functional nature of clothing.
3.2 Cofemel v. G-Star Row. TJUE (2019)[26]
G-Star Row, a Dutch fashion brand engaged in the design, production and commercialization of clothing, brought an action against Cofemel – Sociedade de Vestuário S.A., alleging copyright infringement and seeking a declaration that the defendant had also engaged in acts of unfair competition. While G-Star contended that its designs constituted original intellectual creations, Cofemel argued that the garments could not qualify for copyright protection, as they did not satisfy the requirement of originality. The Court of Justice of the European Union [TJUE], relied on the Recital 8 of Directive 98/71 of the European Parliament and Council to determine that originality refers to “the author’s own intellectual creation.” Although the Court ultimately ruled against G-Star Raw, it nevertheless clarified an important principle: any creation that satisfies the requirement of originality may qualify for protection under copyright law.
This case law is particularly relevant in the context of luxury fashion design hence, by rejecting additional criteria such as artistic value or aesthetic effect, the Court confirmed that the protection of fashion designs does not depend on their novelty or visual distinction, but rather on the presence of creative choices attributable to the author.
POTENTIAL OBJECTIONS
While copyright protection may, at first glance, appear to offer an adequate legal framework for safeguarding fashion pieces inspired by the quiet luxury movement, the reality is more complex. In the absence of a legal regime specifically designed to address the unique characteristics of fashion design, such protection remains uncertain and largely speculative.
The argument advanced throughout this article rests on the premise that designs of handbags, luggage, dresses, shoes, and other elements of the fashion industry can satisfy the criteria required for classification as artistic works and therefore fall within the scope of copyright protection. From this perspective, luxury fashion designs —particularly those characterized by the refined craftsmanship and aesthetic intentionality typical of the quiet luxury movement— should logically receive similar protection. However, under the current Colombian legal framework, such design pieces are not expressly protected through copyright, leaving a significant gap in the legal protection available to fashion designers. Nevertheless, the absence of explicit regulation does not preclude the possibility of legislative development in this area.
In this regard, comparative legal analysis offers a valuable pathway forward. The European legal framework —particularly the French model, which has long recognized fashion design within the broader sphere of artistic and industrial property protection— provides a compelling example. Adopting a similar approach within the Colombian legal system could strengthen the protection afforded to fashion creations while simultaneously fostering innovation, stimulating consumption, and contributing to broader economic growth within the fashion and creative industries.
Moreover, in the absence of explicit governmental opposition to legislative initiatives in this area, the present moment offers a favorable context for regulatory development. This creates an opportunity to examine and cautiously adapt legal frameworks that have proven effective in European jurisdictions, particularly those that recognize fashion design within the scope of intellectual property protection. Such an approach, however, should not consist of a mere transposition of foreign norms. Rather, it requires a deliberate process of legal adaptation, ensuring that the selected elements respond coherently to Colombia’s institutional structure, economic conditions, and the realities of its creative industries.
CONCLUSION
This article has argued that the rise of quiet luxury exposes structural imitation within the Colombian intellectual property framework governing fashion law. Looking back, it demonstrates that although Decision 351 and national copyright legislation provides a theoretical avenue for protection of fashion designs through its recognition as works of applied art, its application remains uncertain and underdeveloped. The absence of explicit regulation, combined with demanding interpretations of originality, has left designers operating within a legal environment that struggles to accommodate the realities of contemporary fashion creation.
Looking forward, the Article suggests that the most promising path lies in a pragmatic regulatory approach that clarifies the protection of fashion designs without disrupting the existing intellectual property structure. Rather than creating an entirely new regime, reform could focus on refining the interpretation of originality, strengthening the recognition of applied art within the fashion industry, and incorporating lessons from comparative jurisdictions—particularly the French model, where fashion design has long been integrated into copyright protection.
Consequently, Colombia must adapt its legal framework to the evolving realities of the luxury fashion industry before the opportunity for effective intervention is lost. Failure to address these developments risks undermining the institutional credibility of copyright law and leaving fashion designers and luxury brands increasingly vulnerable to counterfeiting and unauthorized design appropriation.
REFERENCE(S):
[1] Eckhardt, G. M., Belk, R. W., & Wilson, J. A. J. (2015). The rise of inconspicuous consumption. Journal of Marketing Management, 31(7–8), 807–826.
[2] Ibidem (2015)
[3] Taylor, C. R., Borenstein, B., & Pangarkar, A. (2025). What, no logos? Why some minimalists prefer quiet luxury. Psychology & Marketing,42, 142–158.
[4] Ibidem. Taylor, C. R., Borenstein, B., & Pangarkar, A. (2025)
[5] The Andean Community (CAN) is a community of countries that voluntarily come together with the aim of achieving comprehensive, more balanced, and autonomous development.
Servicio Nacional de Aduana del Ecuador. (2026)
[6] Article 61. “The State shall protect intellectual property for the period of time and through the formalities established by law.” Constitución Política de la República de Colombia (1991).
[7] No longer a member.
[8] Acuerdo de Integración Subregional Andino [Acuerdo de Cartagena]. (1969)
[9] Baldwin, P. (2014). The Battle between Anglo-American Copyright and European Authors’ Rights. In The Copyright Wars: Three Centuries of Trans-Atlantic Battle (pp. 14–52). Princeton University Press. http://www.jstor.org/stable/j.ctt6wq0z2.4
[10] MINCIT. Comunidad Andina. (2000) Decisión 486 de 2000. Régimen Común Sobre Propiedad Industrial. Ministerio de Comercio, Industria y Turismo
[11] DNDA. (2003) Circular número 10 sobre las artesanías y el derecho de autor. CECOLDA
[12] Tarquini, A., Mühlbacher, H., & Kreuzer, M. (2022). The experience of luxury craftsmanship–a strategic asset for luxury experience management. Journal of Marketing Management, 1-32.
[13] Gaitán, s. (2011). Propiedad intelectual y moda en Colombia: el árido camino de la protección.
[14] DNDA. (2023) Legal Concept. Rad. 79370
[15] LIPSZYC, Delia. Derecho de Autor y Derechos Conexos. Buenos Aires, obra editada conjuntamente por la UNESCO, el CERLALC y Víctor P. Zavália. S.A., 2001, P. 123.
[16] Ibidem, 15
[17] Interpretación prejudicial 32-IP-1997, caso “TERMINATOR” del 2 de octubre de 1998. En Gaceta Oficial del Acuerdo de Cartagena No. 416 del 15 de marzo de 1999.
[18] WIPO. “Código de la propiedad intelectual”. Capítulo II: Obras protegidas. Artículos L112-1 a L112- 4. Se encuentra en: https://www.wipo.int/edocs/lexdocs/laws/es/fr/fr467es.pdf
[19] ROBERTS, A. “French Supreme Court rules fashion shows protected by copyright—what about the UK?”. French Court of Cassation, 5 February 2008. Se encuentra en: https://core.ac.uk/download/pdf/9403814.pdf
[20] Ibidem 19
[21] Ginsburg, C, Jane. (1989) French Copyright Law: A comparative overview. 36 J. Columbia Law School. p.274
[22] Ibidem, 21
[23] Comunidad Andina. (1993) Decisión 351 de 1993. Régimen Común Sobre Derechos de Autor y Derechos Conexos. Art. 14.
[24] Supreme Court of the United States. (2016) STAR ATHLETICA, L.L.C. v. VARSITY BRANDS, INC., ET AL. October Term.
[25] Sixth Circuit Court of Appeals in the United States.
[26] Court of Justice of the European Union. (2019) Cofemel – Sociedade de Vestuário SA v G-Star Raw CV. JUDGMENT OF THE COURT (Third Chamber)
