With New York's Fashion Week upon us, the time is appropriate to examine the intellectual property protections available to some of the most prominent artists in popular culture: fashion designers. No one would seriously question the great artistic talents of many designers. Their imaginative, inventive, and daring creations and their lasting legacies have pushed artistic limits of the fashion world for decades. And yet, despite being undoubtedly artists in their craft, fashion designers do not enjoy the same protection in their work under current U.S. intellectual property laws that their artistic peers enjoy in the worlds of visual arts, film, music and dance.

Fashion designs do not fit neatly into a traditional intellectual property realm. Copyrights generally are not granted to apparel because articles of clothing are considered functional "useful articles," as opposed to non-utilitarian works of art. Design patents are intended to protect ornamental designs, but clothing rarely meets the demanding requirements of "novelty" and "non-obviousness" for patentability. Trademark law, while useful to protect brand names and logos, generally does not protect the clothing itself, and the Supreme Court has refused to extend trade dress protection to apparel designs.

This lack of copyright protection for fashion designers has in part created the phenomenon of "red carpet copycats": companies that hurriedly create and sell copies of the glamorous or bold garments worn by celebrities at red-carpet events. Knockoff goods are a huge part of the fashion industry, and have become common practice. The instantaneous nature of the internet and mobile camera phones has made fashion designs even more susceptible to immediate widespread display and copying.

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