Protecting your designs from fast fashion knockoffs

How to Protect Your Fashion Design from a Fast Fashion Knockoff

In Fashion Design, Retail & Salesby Eldonie Mason

You are a designer, an artist, a creator and you want to protect your fashion designs from a fast fashion knockoff. For you, it goes beyond a killer dress or a fierce suit; for you, it’s an artistic expression of epic proportions. Your vision coming to life in the form of clothing – your masterpiece!

After working so hard on your collection, you decide to show at New York Fashion Week. Your show is a hit! You are elated and worried at the same time. Thoughts race through your mind – “Can I protect my designs?”, “Will the knock offs spring up like wild fire and flood the market before I get there?”.

These are all valid concerns. No designer wants their hard work to be turned into a cheap imitation. So,
how can a fashion designer protect their collection from fast fashion knockoffs?

Can you copyright a fashion design?

Unfortunately, U.S. copyright law generally does not offer protection for clothing designs because they are seen as useful articles. That is, they perform the utilitarian function of covering the body which is often not separable from the artistic expression. You must be feeling bummed right about now like all hope is lost.

But wait, a glimmer of hope came over the horizon in 2017 when the U.S. Supreme Court handed down
its decision in Star Athletica, L.L.C. v. Varsity Brands Inc. In that case involving the arrangement of
shape, colors, stripes and chevrons on cheerleader uniforms, the court ruled that the “artistic” feature on
clothing designs can be protected by copyright, “Yay!”.

However, before you start doing the happy dance, it must be noted that your entire fashion design will not be
protected, but only the artistic elements that can pass the two-part test which was laid out by the court:

  1. The artistic feature of your design will get copyright protection if the feature can be perceived as a two- or three-dimensional work of art separate from the useful article, and;
  2. The design would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some
    other medium if imagined separately from the useful article.

As you can see, passing this test will not be an easy feat. Think about it, how many times do you design
clothes with something extra on it? It may reek of unfairness that fast fashion retailers profit off of your
designs while you are still trying to make it into the U.S. market and your European fashion designs are
protected. So, what can you do?

Getting to Market Before a Fast Fashion Knockoff

You don’t have to view the situation as a lost cause, but an opportunity to pull a “fast one” on fast
fashion. You could do so by simply “knocking off” your own designs and selling it under a budget label
instead of your couture line. You will reap the benefits of the high- and low-end markets!

To stop knock-offs from reaching mass markets first, sell your budget collection on an online marketplace for independent fashion designers such as Etsy, Ebay, or Amazon Fashion.

If your brand is a part of the sustainable fashion movement, you can list your budget-friendly fashion label on sites such as Made Trade, Bead & Reel, or Ethica.

About Eldonie Mason

Eldonie is an entertainment, business and fashion attorney and owner of Mason Firm, LLC with a passion for fashion and the arts. She has represented clients across the entertainment industry including actors, directors and producers. She has also advised fashion industry clients on corporate formation, brand development and trademark protection and compliance with FTC Regulations. Full bio at www.masonfirmllc.com

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