Why is fashion design per se not copyright-protected?

Is fashion design not really copyright-protected in the US and most countries? Click here to hear Johanna Blakely talk about fashion's free culture at TED Talk.

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For Further Reading:


These are excerpts from Oliver Herzfeld's article in Forbes titled "Protecting Fashion Designs".

The U.S. Trademark Act does not provide protection for fashion designs per se. Instead, trademark law protects brand names, logos, symbols, designs and other optional elements of apparel and accessories, and trade dress law protects the design, packaging or appearance of apparel and accessories, solely to the extent they identify the source and origin of such products. For example, the brand name and logo hang tag and distinctive pocket stitching on a pair of jeans could be registered as protectable trademarks, and the unique shape of a dress could be registered as protectable trade dress.

Copyright law protects original prints and patterns, unique color arrangements and novel combinations of elements (protectable or non-protectable) used on apparel and accessories but, in most cases, not fashion designs themselves. The one exception under the U.S. Copyright Act is that a fashion design may be protectable “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.” Courts have established that the test for separability may be met by showing either physical or conceptual separability. A design element is considered physically separable when it can be removed from an article of apparel and sold separately (e.g., a belt buckle), and 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 (e.g., a Halloween costume).