Authored By: Juhi
Symbiosis Law School Noida
Abstract
This paper will discuss the sufficiency of copyright protection for fashion designs by comparing the originality of copyright law in the European Union, the United States, and India. Although fashion designs are important investments in creativity and economics, their protection under the copyright law is uneven and, in most cases, inadequate across jurisdictions. The research question under consideration in the article is as follows: What is the extent of the originality requirement in respect of copyright of fashion designs as perceived by courts? By research methodology using doctrinal legal research, statute analysis, case law research, and commentary by scholars, the article concludes that the differences between diversified interpretations of originality between the origin of the intellectual creation of the author of the statute and the modest threshold of creativity in the US and the skill and judgment test in India would yield significant different results in fashion designers. The article assesses the conceptual tension of the utilitarian functionality of clothing and its artistic expression with a critical evaluation. It suggests reforms to provide a coherent, predictable framework for protecting fashion designs across jurisdictions.
Introduction
It is reported that the global fashion industry earns more than 1.5 trillion in annual revenue. Still, the legal safeguards for the very creative assets of the industry, namely fashion designs, are incredibly fragmented and unstable. Fashion designs occupy a contentious position at the boundary of intellectual property law, where copyright, design rights, and trademark protection intersect and often conflict. Though the luxury fashion houses spend a lot of money on original creative expression, there are ongoing problems obtaining the proper legal protection against copying and imitation. The potential importance of this legal grey area does not rest solely on the established brands but also on independent designers, whose ability to block copyists determines the viability of their commercial activities.
The research question that this article is dealing with is as follows: How could the requirement of originality of copyright law, interpreted and applied by the courts of various jurisdictions, help or hinder the sufficient protection of fashion designs? It is a critical question, especially considering the rapid pace of fast fashion, which allows designers to copy designs almost without facing legal penalties, and the rise of digital fashion and virtual goods that upset traditional conceptions of protectable subject matter.
The article’s procedure is divided into six sections. After this introduction, Part II defines the paper’s conceptual framework, which investigates what fashion designs are as protectable subject matter and on what theoretical basis the originality requirement is grounded. Part III holds a comparative legal study of the way the three significant jurisdictions, the European Union, the United States, and India, address the originality issue in the context of fashion. Part IV examines important case law that sheds light on judicial rationales on fashion copyright protection. Part V provides a critical discussion of the gaps/inconsistencies identified in the comparative analysis, the policy implications, and possible reforms. The conclusion summarises the results and recommends a more harmonious approach to protecting fashion designs.
Background and Conceptual Framework
The Nature of Fashion Designs as Protectable Subject Matter
Fashion designs pose a special challenge for copyright law because they sit at the intersection of artistry and utility. A garment can serve a functional role by covering the body and may reflect imaginative choices in form, proportion, texture, colour, and decoration. This is the core of the legal challenge: copyright law traditionally safeguards artistic objects but not utility articles, leaving, as scholars have called it, a negative space in intellectual property protection for fashion.
These negative spaces, as Martin Senftleben notes in his contribution to The Handbook of Fashion Law, can paradoxically encourage sustainable consumption and enable design diffusion. But they leave creators open to appropriation as well. The fashion business is characterized by circular collections and fast trends, as well as an inspirational and reinterpretation culture, which makes it difficult to distinguish between legal borrowing and illegal copying.
Fashion designs are not a fixation like in literary or musical works and do not exist as unique, standout works of art; they are created through an iterative process that builds on historical sources, culture, and dominant aesthetics. This feature has led certain courts and commentators to doubt whether fashion designs meet the originality requirement for copyright or are merely variations of existing themes.
The Originality Requirement in Copyright Law
Originality serves as the threshold for copyright protection, distinguishing protectable works from those lacking sufficient creative authorship to warrant exclusive rights. However, originality is not a monolithic concept; its interpretation varies significantly across legal systems and has evolved substantially over time.
In civil law systems, particularly those following the French droit d’auteur tradition, originality has historically been understood as the ‘imprint of the author’s personality’, a standard that emphasises creative expression reflecting individual authorship. Common law systems, by contrast, traditionally employed a lower threshold, requiring only that the work originated with the author and was not copied, with minimal attention to creative merit. The past three decades have witnessed a convergence toward an intermediate standard, influenced significantly by European harmonisation and international treaties.
The Berne Convention for the Protection of Literary and Artistic Works, to which most nations are signatories, establishes that copyright protection extends to ‘literary and artistic works’ but leaves the definition of these terms to member states.[1]. Article 2(1) includes ‘works of applied art’ within the non-exhaustive list of protected subject matter, yet permits member states to determine both the extent of protection and the conditions under which such works are protected. [2]This flexibility has produced substantial divergence in national approaches to fashion design protection.
The Functionality Exclusion and the Separability Doctrine
A further complication arises from copyright’s traditional exclusion of utilitarian articles. In the United States, this exclusion is codified in section 101 of the Copyright Act, which provides that the design of a useful article shall be considered a pictorial, graphic, or sculptural work ‘only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.’ This ‘separability’ doctrine, both conceptual and physical, has generated extensive litigation and scholarly debate regarding its application to fashion designs.
European design law, harmonised through the Design Directive and Community Design Regulation, offers a distinct regime specifically tailored to industrial designs, including fashion. This \textit{sui generis} protection exists alongside copyright, with the crucial question being the relationship between the two regimes. The Court of Justice of the European Union has addressed this relationship in several significant rulings, requiring member states to provide cumulative protection under certain conditions.
Legal Analysis
The European Union: ‘Author’s Own Intellectual Creation’
The European Union’s approach to copyright originality has been substantially harmonised through a series of Court of Justice decisions, most notably Infopaq International A/S v Danske Dagblades Forening (C-5/08), which established that copyright protection requires the work to be the ‘author’s own intellectual creation.’ [3]This standard, derived from the Berne Convention and various EU directives, now applies across all categories of works, including photographs, databases, and software, and has been extended to works generally through the Court’s jurisprudence.[4]
For fashion designs, the ‘author’s own intellectual creation’ standard requires demonstrating that the design reflects creative freedom and personal choices rather than being dictated by technical considerations or functional requirements. This inquiry parallels but is distinct from the assessment of ‘individual character’ required for Community design protection under the Design Regulation. As David Stone and Philip Davies note in their analysis of General Court jurisprudence, the assessment of overall impression in design cases has important implications for understanding how courts evaluate creative contribution.
The Court of Justice addressed the relationship between copyright and design protection directly in Cofemel – Sociedade de Vestuário SA v G-Star Raw CV (C-683/17), a landmark ruling with profound implications for the fashion industry. The case concerned whether Portuguese law could condition copyright protection for designs on a requirement of ‘artistic value’ exceeding that applied to other works. [5]The Court held that such additional requirements were impermissible: works that are the author’s own intellectual creation must be eligible for copyright protection, and member states cannot impose supplemental criteria.
However, the Court simultaneously emphasised that copyright protection requires the subject matter to be ‘original in the sense that it is an intellectual creation of its author reflecting his personality and expressing his free and creative choices.’ For fashion designs, this means that the design must go beyond mere ‘technical considerations, rules or other constraints’ and manifest the designer’s creative contribution. The Court’s reasoning suggests that many fashion designs, particularly those driven by functional considerations or seasonal trends, may fail to meet this threshold.
The United States: Minimal Creativity and the Separability Requirement
United States copyright law adopts a threshold of originality that is ‘modest’ but ‘not trivial,’ requiring ‘some minimal degree of creativity’ as articulated in Feist Publications, Inc. v Rural Telephone Service Co. (499 US 340, 1991). [6]This standard, while theoretically inclusive, operates alongside the separability requirement for useful articles, creating a two-part inquiry for fashion designs.
The separability doctrine, codified in section 101, requires courts to determine whether a garment’s artistic features can be identified separately from and exist independently of its utilitarian function. The Second Circuit’s influential decision in Kieselstein-Cord v Accessories by Pearl, Inc. (632 F.2d 989, 2d Cir. 1980) held that decorative belt buckles qualified for copyright protection because their primary function was ornamental rather than utilitarian. By contrast, the same court in Carol Barnhart Inc. v Economy Cover Corp. (773 F.2d 411, 2d Cir. 1985) denied protection to mannequins used to display clothing, finding that their artistic features were inseparable from their utilitarian purpose.
The Supreme Court addressed the separability doctrine in Star Athletica, LLC v Varsity Brands, Inc. (580 US 405, 2017), a case involving cheerleading uniform designs. The Court adopted a relatively expansive approach, holding that graphic features arranged on a useful article are eligible for copyright protection if they (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work if imagined separately from the useful article. [7]Applying this test, the Court found that the chevrons and stripes on Varsity’s uniforms could be protected because they were design elements that could exist independently as graphic works.
The Star Athletica decision has significant implications for fashion, suggesting that ornamental features of garments, prints, patterns, colour arrangements, and surface decorations may satisfy separability even if the overall garment shape remains functional. However, the decision leaves unresolved questions regarding the protection of silhouette, drape, and three-dimensional form, which may be more closely intertwined with utilitarian considerations.
India: The ‘Skill and Judgment’ Standard
Indian copyright law, governed by the Copyright Act 1957, adopts an originality standard derived from the common law tradition but inflected with local judicial interpretation. [8]Section 13(1)(a) protects ‘original literary, dramatic, musical and artistic works,’ with ‘artistic works’ defined to include works of artistic craftsmanship. The courts have interpreted originality to require the exercise of ‘skill and judgment’, a standard articulated in Eastern Book Company v D.B. Modak (2008) 1 SCC 1, where the Supreme Court distinguished between mere labour (the ‘sweat of the brow’ doctrine) and the application of intellectual effort.[9]
For fashion designs, Indian law offers potential protection through multiple routes. Works of artistic craftsmanship, a category explicitly recognised in the Copyright Act, could encompass handcrafted garments and textile designs that manifest artistic skill. Additionally, section 15 creates a complex relationship between copyright and design registration, providing that copyright in a design capable of registration under the Designs Act 2000 but not registered shall cease as soon as the design is industrially applied more than 50 times.[10]
This statutory framework has produced considerable uncertainty for fashion designers. As Ampuan Situmeang and colleagues note in their comparative analysis of trademark protection in sustainable fashion, the Indonesian legal system, like India’s, faces the challenge of adapting intellectual property frameworks developed for industrial contexts to the distinctive characteristics of the fashion industry. The Indian approach reflects a similar tension: the law provides theoretical protection, but the interaction between copyright and design regimes, combined with inconsistent judicial application, creates practical obstacles for designers seeking to enforce their rights.
Case Law Discussion
Case 1: Cofemel – Sociedade de Vestuário SA v G-Star Raw CV (Court of Justice of the European Union, C-683/17)
Facts: G-Star Raw, a Dutch clothing company, held registered and unregistered Community designs for jeans and sweatshirts. When it discovered that Cofemel, a Portuguese clothing company, was marketing garments bearing, G-Star alleged, copies of its designs, it brought proceedings in Portuguese courts. The Portuguese Supreme Court referred questions to the Court of Justice regarding the relationship between copyright and design protection, specifically whether Portuguese law could require designs to possess ‘artistic value’ as a condition for copyright protection.
Judgment: The Court of Justice held that the concept of ‘work’ under EU copyright law requires two cumulative elements: (1) an original subject matter that is the author’s own intellectual creation, and (2) expression of that creation. The Court emphasised that the ‘author’s own intellectual creation’ standard reflects the author’s personality and expresses free and creative choices. Member states cannot impose additional requirements, such as aesthetic merit or artistic value, for protection. However, the Court also stressed that designs dictated by technical function lack the necessary originality.
Legal Principle Established: Copyright protection for designs, including fashion designs, is available automatically upon satisfaction of the originality standard, without any additional threshold of artistic merit. However, the originality inquiry requires demonstrating that the design reflects creative freedom rather than technical constraints.
Relevance to Research Topic: This decision substantially lowers the barriers to copyright protection for fashion designs across the European Union by prohibiting member states from imposing aesthetic value requirements. Nevertheless, it leaves open the central question of which fashion designs actually satisfy the ‘author’s own intellectual creation’ standard, suggesting that many garments, particularly those that follow seasonal trends or meet functional requirements, may fall short of it.
Case 2: Star Athletica, LLC v Varsity Brands, Inc. (Supreme Court of the United States, 580 US 405, 2017)
Facts: Varsity Brands, a leading manufacturer of cheerleading uniforms, owned copyright registrations for graphic designs featuring chevrons and stripes arranged on the surface of uniforms. Star Athletica, a competitor, began marketing uniforms with similar design elements. Varsity sued for copyright infringement, and Star Athletica challenged the validity of the copyrights, arguing that the designs were not separable from the uniforms’ utilitarian function.
Judgment: The Supreme Court held that the designs were eligible for copyright protection. Applying the two-part test described above, the Court found that the graphic features could be perceived as two-dimensional works of art separate from the uniforms, and they would qualify as protectable pictorial or graphic works if imagined separately. The Court rejected the argument that separability required the design to stand alone as a physical object; conceptual separability sufficed.
Legal Principle Established: The test for separability asks whether the artistic features of a useful article can be imagined as independent pictorial, graphic, or sculptural works. If so, and if those imagined works would satisfy copyright’s originality requirement, the design is protectable regardless of its application to a useful article.
Relevance to Research Topic: This decision clarifies the separability inquiry in terms favourable to fashion protection, at least for two-dimensional surface decorations. However, it leaves unresolved the protection of three-dimensional garment shapes and silhouettes, which may be more difficult to imagine separately from their utilitarian function of covering the body.
Case 3: Eastern Book Company v D.B. Modak (Supreme Court of India, (2008) 1 SCC 1)
Facts: Eastern Book Company published copies of Supreme Court judgments with added headnotes, paragraph numbering, and editorial enhancements. When another publisher reproduced these enhanced versions, Eastern Book Company sued for copyright infringement. The case required the Supreme Court to articulate the applicable standard of originality in Indian copyright law.
Judgment: The Supreme Court rejected the ‘sweat of the brow’ doctrine, which would have protected labour and investment regardless of creativity, and adopted instead a standard requiring ‘skill and judgment.’ The Court held that copyright protection requires the author to exercise intellectual effort that produces something original, not merely to invest labour in reproducing existing material. The editorial enhancements in this case satisfied this standard because they required creative choices in presentation.
Legal Principle Established: Originality in Indian copyright law requires the exercise of skill and judgment that results in a work distinct from its source material. Mere copying or labour-intensive reproduction does not suffice.
Relevance to Research Topic: Although not a fashion case, Eastern Book Company establishes the governing originality standard for all copyright works in India. For fashion designers, this standard requires demonstrating that their designs embody intellectual effort and creative choices, not merely that they have invested labour in production. The standard creates opportunities for protecting distinctive design elements but also invites fact-intensive inquiries into whether garments meet the threshold.
Critical Analysis and Findings
Conceptual Incoherence in the Originality Inquiry
The comparative study shows that the courts have produced considerable conceptual incoherence in applying originality to fashion design. Three core issues arise.
First, the courts find it difficult to draw the line between design decisions based on creative authorship and those driven by functional considerations, trends, or industry norms. The free and creative choices criterion developed by the EU, though theoretically sound, is challenging to implement in practice. Fashion designers will always operate in a limited environment, with seasonal colour codes, production restrictions, customer demands, and current trends. It makes subjective decisions that do not suit the courts to distinguish between choices arising from an authorial personality and those responsive to external factors.
Second, the connection between copyright and sui generis design protection is not well theorised. The Cofemel case is right to reject any extra-aesthetic standards of copyright, but both regimes serve different functions and are guided by different principles. Design protection involves individual character and a clear general impression on the informed user, whereas copyright requires originality. The nature of the conceptual relationship between these standards is undefined, leaving right-holders in the dark as they try to determine which regime will apply to the creations.
Third, fashion has a time aspect, which makes it difficult to analyze originality. Fashion is an inspirational and iterative process as designers draw on past sources, cultural heritage, and current trends.
The originality requirement of copyright law, which is based on Romanticist ideas of individual authorship, does not easily fit this cooperative, collaborative creative process.
The law should distinguish between the legal act of borrowing, the design corpus, and the illegal act of appropriation. Still, the originality question offers the least information on this relation.
Divergent Outcomes Across Jurisdictions
The comparative analysis shows that the same fashion designs can be protected to vastly different degrees across jurisdictions. A garment with unique surface ornamentation can be protected by copyright in the United States under Star Athletica as a separable artistic expression. Conversely, a different garment could not pass the EU standard for the author’s own intellectual creation if a court finds that its characteristics are not sufficiently unique. The copyright and design registration in Section 15 of the Copyright Act may further complicate matters for an Indian designer.
This separation poses business challenges for international fashion companies operating across markets. An effective design strategy protection strategy in one jurisdiction can fail to protect rights in another, and rights holders must endure a patchwork of laws with differing criteria. The harmonising effect of international treaties, although important, has not led to convergence on the fundamental question of whether a fashion design is original enough to warrant copyright protection. This paper examines the sufficiency of copyright protection for fashion designs by comparing the originality standards in the European Union, the United States, and India. The main research question posed was: to what degree is the originality requirement a positive or negative contributor to adequate protection of fashion designs?
Conclusion
This article examines the adequacy of copyright protection for fashion designs by comparing the originality requirements in the European Union, the United States, and India. The central research question asked to what extent the originality requirement facilitates or frustrates adequate protection for fashion designs.
The author’s concept of the criterion of their own intellectual creation for the European Union, harmonised by Cofemel, has not been conceptually defined in the context of fashion. The doctrine of separability, as developed in the United States regarding Star Athletica, provides strong protection for surface ornamentation and creates doubt about the three-dimensional design. The ‘skill and judgment’ standard in India, as set out in Eastern Book Company, opens the door to fact-intensive enquiries that can be disadvantageous to designers seeking an efficient application.
These shortcomings can be addressed through several reforms. To begin with, increased judicial involvement in the fashion industry would ground originality analysis in business facts rather than in pure aesthetic evaluations. Second, clarity in the law governing the interaction between copyright and design regimes would help rights holders reduce confusion. Third, harmonisation activities in the international arena must consider the particularities of fashion design rather than treating it as just one of many businesses.
Conclusively, to copyright fashion designs, the legal framework needs to be reconciled with the unique nature of fashion creativity. So far, fashion designers have had to put up with a legal environment marked by uncertainty, inconsistency, and inefficient safeguards for the creative investments they make, until courts and legislatures address this problem more explicitly.
References and Bibliography
Primary Sources
European Union
- Case C-683/17, Cofemel – Sociedade de Vestuário SA v. G-Star Raw CV, ECLI:EU:C:2019:721.
- Case C-5/08, Infopaq Int’l A/S v. Danske Dagblades Forening, 2009 E.C.R. I-06569.
- Council Directive 2001/29/EC, 2001 O.J. (L 167) 10.
- Council Regulation (EC) 6/2002, 2001 O.J. (L 3) 1.
India
- The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
- The Designs Act, 2000, No. 16, Acts of Parliament, 2000 (India).
- E. Book Co. v. D.B. Modak, (2008) 1 S.C.C. 1 (India).
United States
- Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411 (2d Cir. 1985).
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
- Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980).
- Lanham Act, 15 U.S.C. § 1125(a) (2018).
- Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405 (2017).
Secondary Sources
Books
- THE HANDBOOK OF FASHION LAW (Eleonora Rosati & Irene Calboli eds., 2025).
Journal Articles
- Julia Ciani et al., A Comparative Study of Fashion and IP: Non-Traditional Trademarks in Italy and Australia, 50 IIC 1101 (2019).
- Arianto Situmeang et al., Trademarks in Sustainable Fashion: A Comparative Legal Analysis of Indonesia and Italy, 15 JURISDICTIE 1 (2024).
- David Stone & Polina Davies, General Court: Yves Saint Laurent v. OHIM – H&M, 11 J. INTELL. PROP. L. & PRAC. 16 (2016).
Online Sources
- Eleonora Rosati & Irene Calboli, Introduction: The Rise and Consolidation of Fashion Law as a Field of Practice, Study, and Research (2025), https://scholarship.law.tamu.edu/facscholar/2222/.
[1] Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised July 24, 1971, 1161 U.N.T.S. 3.
[2] Id. art. 2(1).
[3] Case C-5/08, Infopaq Int’l A/S v. Danske Dagblades Forening, 2009 E.C.R. I-06569.
[4] Council Directive 2001/29/EC, 2001 O.J. (L 167) 10.
[5] Case C-683/17, Cofemel – Sociedade de Vestuário SA v. G-Star Raw CV, ECLI:EU:C:2019:721.
[6] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
[7] Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405 (2017).
[8] The Copyright Act, 1957, § 13, No. 14, Acts of Parliament, 1957 (India).
[9] E. Book Co. v. D.B. Modak, (2008) 1 S.C.C. 1 (India).
[10] The Copyright Act, 1957, § 15, No. 14, Acts of Parliament, 1957 (India); see also The Designs Act, 2000, No. 16, Acts of Parliament, 2000 (India).
