Introduction

Fashion has always been at the intersection of art, commerce, and law. Designers invest creativity and resources into producing garments and accessories that not only serve functional purposes but also express cultural identity and artistic vision. Yet, fashion designs are notoriously difficult to protect under intellectual property (IP) law. The legal tension primarily lies between copyright, which protects original works of authorship, and design protection, which safeguards the appearance of products.

This article explores the conflict between copyright and design regimes in fashion law, analyzing their overlapping scopes, limitations, and the implications for innovation in the global fashion industry.

Copyright and Fashion Designs

Copyright law protects works of artistic expression that meet the threshold of originality. In many jurisdictions, garments are often considered “useful articles,” meaning that their functional aspects are not copyrightable. Copyright may extend only to features that can be conceptually separated from the garment’s utilitarian purpose—for example, an intricate print on a dress, embroidery, or ornamental patterns.

In the United States, the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc. (2017) clarified this issue, holding that cheerleading uniform designs could be copyrightable if artistic elements could exist independently of the clothing’s utilitarian function. However, this ruling has not eliminated ambiguity, and courts continue to wrestle with the thin line between function and expression.

In contrast, EU law has been more flexible. The Court of Justice of the European Union (CJEU) has recognized that artistic works used in fashion can qualify for copyright protection if they reflect the author’s own intellectual creation. Still, the level of originality required remains relatively high, excluding many standard fashion designs.

Design Protection in Fashion

Design protection, by contrast, is specifically tailored for the appearance of products. Registered designs provide exclusive rights for a fixed term, typically up to 25 years in the EU. Unregistered design rights, also recognized in the EU, offer short-term protection against copying of novel and distinctive designs.

Design law is particularly relevant in fast-moving industries like fashion, where trends change quickly. A shorter period of protection for unregistered designs aligns with the short lifespan of many fashion items. However, critics argue that design protection is often too limited, as it may fail to safeguard broader stylistic concepts or brand identity.

Conflict Between the Two Regimes

The overlap between copyright and design protection creates legal uncertainty. Designers may attempt to rely on copyright to obtain stronger and longer protection, while infringers may argue that fashion designs should only be covered under design law. This dual system leads to conflicting outcomes:

• Overprotection risk: Allowing both copyright and design protection may create overlapping monopolies, stifling competition and limiting access to creative ideas.
• Underprotection risk: Limiting protection strictly to design law may fail to reward high levels of creativity, discouraging designers from investing in innovative works.

The conflict is particularly visible in jurisdictions where copyright automatically attaches to artistic works, whereas design rights require registration. Designers often face uncertainty about whether their work qualifies for one, both, or neither.

Implications for the Fashion Industry

The uncertainty surrounding IP protection in fashion contributes to widespread copying and imitation, sometimes labeled as “legalized plagiarism.” Fast-fashion companies exploit legal gaps by reproducing high-end designs at low cost, raising concerns about fairness and sustainability. At the same time, too much protection could inhibit creativity, as fashion often thrives on borrowing, remixing, and reinterpretation of past styles.

Conclusion

The conflict between copyright and design protection in fashion reflects the broader struggle of IP law to balance innovation with competition. Copyright law, with its focus on originality and artistic expression, often struggles to fit fashion’s functional and fast-paced nature. Design law, while more tailored, provides only limited scope.

A more harmonized approach may be necessary—one that clarifies the boundaries of copyright in fashion while strengthening design protection in a way that reflects the realities of the industry. Ultimately, the law must strike a balance: protecting genuine creativity without suffocating the cycle of inspiration that drives the fashion world.