Copying a Dress: Fashion, the Useful Article Doctrine, and Why Design Piracy Is Mostly Legal
By Casey Scott McKay ·
American law protects a printed textile and leaves the dress it becomes almost entirely unprotected, which is why fast fashion is a business rather than a tort. This article explains why. It works the useful article doctrine and the separability test as restated in Star Athletica, showing what that decision did and did not change for garments. It then covers what actually protects a fashion line - surface designs and prints under copyright, design patents for silhouettes and accessories, trade dress where secondary meaning can be proved, and trademarks on logos and signature elements. It closes with the counterfeit response, the fast-fashion enforcement calculus, and why the strongest protection in fashion is usually the brand rather than the design.
IP and Technology > Copyright | Article | Published 23 May 2026 - Updated 10 August 2026 | Casey Scott McKay - marksy.us
Summary. American law protects a printed textile and leaves the dress it becomes almost entirely unprotected, which is why fast fashion is a business rather than a tort. This article explains why. It works the useful article doctrine and the separability test as restated in Star Athletica, showing what that decision did and did not change for garments. It then covers what actually protects a fashion line — surface designs and prints under copyright, design patents for silhouettes and accessories, trade dress where secondary meaning can be proved, and trademarks on logos and signature elements. It closes with the counterfeit response, the fast-fashion enforcement calculus, and why the strongest protection in fashion is usually the brand rather than the design.
Keywords: fashion law · useful article doctrine · separability · Star Athletica · Mazer v Stein · surface design copyright · garment silhouette · design patents for apparel · ordinary observer test · LKQ obviousness · trade dress in fashion · Wal-Mart v Samara · product design secondary meaning · TrafFix functionality · Louboutin red sole · counterfeits and seizure · fast fashion enforcement · textile prints · design piracy · seasonal filing strategy
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