For as long as copyright protection has existed in the United States, protection has never expressly extended to fashion designs because copyright law categorizes fashion designs as “useful articles” that do not receive any protection. In the eighteenth century, this policy perhaps made sense—most clothing was generic, non-decorative, and required little creativity for many of the everyday garments people wore. Clothing in the eighteenth century was commonly made up of useful articles that served very little purpose outside of their utility. However, in today’s society, fashion has transformed into an industry that prizes creativity, ingenuity, innovation, and something more than just utility. Copyright laws have not developed alongside the fashion industry. As a result, almost no fashion designs can receive copyright protection, and other areas of intellectual property law provide little to no protection, especially for smaller, less-established designers. This lack of protection has very real and sometimes very detrimental effects on designers who have the misfortune of a third party stealing their work and reproducing it at low cost. The current hierarchy in the fashion industry favors the well-established designer with the ability to reproduce a stolen design en masse and sell to the world, while the small, independent designer enjoys no recognition and is generally unable to collect for what almost anyone would agree is a morally wrong act.
Robin M. Nagel,
Tailoring Copyright to Protect Artists: Why the United States Needs More Elasticity In Its Protection for Fashion Designs,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol54/iss2/8