As the fall designer fashion season draws to a close, it’s inevitable that, within weeks and maybe even days, knockoffs of the hot new runway designs will appear in fast-fashion chain stores. With the seasons changing and many people doing seasonal shopping or buying holiday gifts, many consumers want to be fashionable while staying financially lean. Is there anything wrong with buying a knock-off handbag or dress? What makes something an illegal copy versus a look that’s “inspired by” the designer version? How can you stay stylish without unintentionally infringing upon designers’ intellectual property rights?
Actually, it’s easier than you think, because fashion designers have very limited protection for their intellectual property rights under United States law. (Most European countries do have fashion laws protecting aspects of fashion design as intellectual property.) Even though fashion designs can seem to be works of art, except for certain limited situations, they don’t fall under the protection of any of the major branches of potentially applicable IP law. And, thus far, efforts to enact legislation that specifically protects fashion designs and creations have failed.
Copyright law: Inadequate protection
Under the U.S. Copyright Act, copyright protection can apply to “pictorial, graphical, and sculptural works.” However, this protection only applies if and to the extent that a work has an aesthetic or artistic component above and beyond its “utilitarian” function. This means that you can copyright original prints and patterns, unique color arrangements, and novel combinations of elements used on apparel and accessories. But in most cases, copyrights cannot protect the designs themselves. And if the artistic aspects cannot be separated from the functional purpose of the item, the item cannot be copyrighted at all.
The judicial test for separability can theoretically be satisfied either by physical or conceptual separability. A design element is considered physically separable when it can be removed from an article of apparel and sold separately. A design element is considered conceptually separable when it comprises artistic features that do not contribute to the utilitarian aspect of the apparel and such features invoke an idea separate from the functionality of the apparel. Unfortunately, courts cannot agree on a definition of what constitutes “conceptual” separability. The tests range from evaluations of the design or construction process (whether an element is created separately and then attached) to the ethereal (whether an “ordinary beholder” would perceive an element as primarily artistic).
Regardless of the standard applied, in no case is the design of clothing itself actually protected unless one would purchase it as art rather than to wear – which makes copyright protection entirely inapplicable to ready-to-wear clothing.
Design patents: Difficult, limited and slow
The U.S. Patent and Trademark Office allows designers to obtain a 14-year patent on new and nonobvious ornamental designs of functional items – for example, a unique and ornate jewelry clasp. Besides protecting a very limited scope of fashion design work, the process for obtaining a design patent is notoriously slow. Despite efforts to speed up and streamline the procedure, a design patent still takes approximately six months – even using all expediting methods (such as filing a petition to expedite with the USPTO or pursuing the USPTO’s extra-expedited “rocket docket” procedure). With fashions changing seasonally (or faster), a process that takes six or more months offers little real-world protection to artists and designers.
Trademark and trade dress: Protecting logos and marks
The U.S. Trademark Act does not provide protection for fashion designs either, but it does provide some limited protection for brand names, logos, symbols, designs and other optional “signature”-style identifying elements of apparel and accessories. “Trade dress,” or the design and shape of a product’s packaging, is also protectable, if it serves the same function as a trademark: i.e., to identify the maker, designer, manufacturer, or other source of the goods. Although, technically, trade dress protection extends to the “shape” of goods, it is likely a stretch to think that this could be applied to protecting the shape of a piece of clothing.
Legislative attempts to enhance protections
In September of 2012, another version of the Innovative Design Protection Act of 2012 (IDPA), also known as the “Fashion Bill,” was presented to Congress. Unfortunately, like the previous versions of the bill, it did not become law.
The 2012 IDPA proposed a method to grant copyright protection to actual fashion designs. Designs could receive copyright protection for three years if they “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.”
The fashion law would provide more protection for fashion designers, both individuals and major fashion houses. It would prohibit copying the appearance of articles of apparel, including ornamentation, original elements and original arrangement or placement of both original and non-original elements. However, opponents argued that the current lack of protection is actually better for the fashion industry than copyright protection would be. They argue that the current ability of mass-market retailers to speed knockoff designs to the racks encourages designers to constantly create new designs and keeps fashion innovative and cutting-edge (supporting a robust industry around quickly-changing trends). An undeniable result of copyright protection would be increased costs to the consumers, as the legal and administrative costs of filing for and defending intellectual property protection would be passed along.
Creative people must find creative solutions
To a limited degree, designers and design houses continue to sue knockoff producers over “copycat” designs. (Upscale designer Stella McCartney recently filed suit against the mass-market designer Steve Madden over an essentially identical knock-off handbag.) Courts consistently continue to interpret copyright laws conservatively, finding that design elements are largely inseparable from their utilitarian functions and thus unprotectable. However, many infringement cases never get to trial or even the summary judgment stage, because they so often settle confidentially and out of court. As a result, fast-fashion houses continue to produce copycat designs of popular designs.
One possible solution is to propose legislation banning knockoffs – virtually indistinguishable copies of runway and high-end fashion designs – while allowing “inspired by” designs that merely have a similar “look and feel.” A fashion law that balances protecting original artistic ideas with allowing free expression could be a creative compromise that supports everyone’s interests.
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Written with the assistance of attorney Jamie Pfeiffer.
 Keyes, Barton. “Alive and Well: The (Still) Ongoing Debate Surrounding Conceptual Separability in American Copyright Law.” Ohio State Law Journal, 69:109. Apr 2012. Web. 25 Oct 2015.
 “Text of the Innovative Design Protection Act of 2012.” GovTrack. 20 Dec 2012. Web. 26 Oct 2015.
 Telfer, Tori. “Fashion Designs Aren’t Protected By Copyright Law, So Knockoffs Thrive as Designers Suffer.” Bustle. Bustle.com, 3 Sep 2013. Web. 25 Oct 2015.
 Donahue, Bill. “Stella McCartney Sues Steve Madden Over Knockoff Bags.” Law360.com, 7 Oct 2015. Web. 25 Oct 2015.
 Fenner, Justin. “How F21 Manages To Copy Designer Fashion And Get Away With It.” Stylite. Stylite, LLC, 21 Jul 2011. Web. 23 Oct 2015.