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An Alternative to Copyright: How Taxes Might Save Fashion

October 5, 2026

Credit: I. Tarsis, “@ the French Pavilion at the Venice Biennale” (2026)

By Shelby Jorgensen

Since time immemorial arguments have raged surrounding the question of “what is art.” ^{^[1]} In the mid-to-late 1880s, Impressionism sparked a highly contested shift away from the realistic depiction of life to a more fanciful, expressive style; one criticized for its status as a work of art.^{^[2]} Transporting across national borders and importing goods that did not look like a familiar form or art was subject to serious tariffs. Starting in the twentieth century, photography became the new-fangled medium often disparaged and not seen as “true art.” ^{^[3]}

Modern artists eventually pushed this even further, directly asking with their work when is something art or not: a mouse-like cup?^{^[4]} a urinal?^{^[5]} a duplicated photo of a celebrity?^{^[6]} Today, artworks can range from a single stroke of a brush on canvas to a pile of candy in a corner, to a banana duct-taped to a wall.^{^[7]} All of these items, regardless of their critical acclaim, receive the same level of copyright protection,^{^[8]} yet fashion designs are not provided any protections.^{^[9]} While the artist responsible for the duct taped banana successfully defended his multi-million dollar work in court, the fashion designers responsible for the outfits seen on every fashion week runway must sit back and watch as Fast Fashion brands like Shein or Missguided quickly and cheaply replicate their work.^{^[10]}

Clothing designs are labeled “useful articles,” meaning the designs cannot receive protection under copyright law.^{^[11]} This lack of protection is not only applicable to the most utilitarian, ubiquitous designs, but even to intricate, unique hand-embroidered dresses that take multiple seamstresses many months to create.^{^[12]} Without copyright protections in place, Fast Fashion brands capitalize on their ability to copy others’ work, forcing smaller designers out of the market.^{^[13]} This is on top of Fast Fashion corporate’s many other sins: greenhouse gas emissions, resource drains, and unethical worker conditions.^{^[14]}

Fast Fashion’s Lack of Protections

Clothing has been a fundamental part of the human experience for thousands of years. It is utilitarian for sure, but also a form of communication regarding culture, status, political affiliation, religion, likes, and dislikes.^{^[15]} The length of a collar, height of a heel, or flare of a pant leg is a walking indication of one’s place in society. Like all byproducts of creative minds forms, a designer incorporates fundamental portions of clothing throughout all items: use of buttons, standardized stitches, bias cut draping. These fundamentals are equivalent to the use of oil mediums, smudging sticks, or aperture adjustment. Within fashion design, like other art forms, designers can use intricate, specialized ways to uniquely assemble fabric.^{^[16]}

Under current United States copyright law, fashion designs do not receive copyright protections due to their categorization as a useful article.^{^[17]} A particular clothing design feature may be copyrighted if it: (1) can be separated from the useful article and be interpreted as a 2-D or 3-D piece of art, and (2) if separately, it would count as “a protectable pictorial, graphic, or sculptural work.”^{^[18]} This separability analysis does not ask if there can be an actual physical separation of the particular feature.^{^[19]} This test has been used to find that the surface designs on a uniform can receive copyright protections, but that the “shape, cut, and physical dimensions” cannot.^{^[20]}

The lack of copyright protection has allowed for a proliferation of copycat clothing designs made by Fast Fashion companies. The New York Times coined the term Fast Fashion back in 1989 when The Limited and Zara first entered the market in the city.^{^[21]} Just like in other art mediums, there is a difference between pulling inspiration and creating something new versus directly copying another’s work.^{^[22]} Counterfeiting, on the other hand, is the practice of direct reproduction down to a protected trademark with the goal of passing an item off as an original.^{^[23]} As opposed to knocking off or duping a product, counterfeiting is an illegal practice that, in 2018, surpassed the sale of drugs and human trafficking as the largest criminal enterprise.^{^[24]}

A knockoff is a replica of an original item meant to be sold at a lower price; it does not intentionally copy any protected portions of a design.^{^[25]} A “dupe” references an item that could stand-in for a more expensive version but is only reminiscent of that item.^{^[26]} The wider public uses the word to describe both a stand-in or a knockoff/counterfeit item using a more colloquial term.^{^[27]}

The consumption of fashion has doubled over the past fifteen years, driven by the shift to Fast Fashion and the shortening of the fashion trend cycle.^{^[28]} Fast fashion corporations have prided themselves on decreasing the time between design, production, and the actual sale of an item.^{^[29]} This overall increase in clothing, along with a continuous increase in new styles and options, allows Fast Fashion to grow, making it the preferred option for 88% of United States consumers.^{^[30]} Booming Fast Fashion business has other ramifications. The push for short lead times and cheap prices brought along a rise in greenhouse gas emissions, water and other resource consumption, microplastic release, harmful working conditions, and low employee wages.^{^[31]}

Fast fashion’s prolific creation of knockoffs and dupes also comes with a catch twenty-two. Large corporations can afford legal action and, in some cases, receive a design patent or trade dress protection for their most popular designs because popularity provides the distinctiveness needed to gain this protection.^{^[32]} Trade dress looks at the whole of an item, not the function of a product.^{^[33]} Trade dress is protected from infringement under 15 U.S.C. § 1125(a),^{^[34]} and typical cases address distinctive product packaging or design.^{^[35]} In contrast, smaller designers and newly created collections that have not been on the market long enough to gain distinction are entirely at risk for Fast Fashion brands to knock off their designs.^{^[36]} Creating knockoffs and dupes provides Fast Fashion brands with a cheap way of designing items and the ability to garner free marketing from the original designer while knowing that the end design will sell—likely more than the original due to faster delivery at a much cheaper price.^{^[37]} The designer who made the popular design is now left without an avenue to recoup any costs incurred from the development process.^{^[38]} Therefore, Fast Fashion brands often force the designer out of the market and eliminate the designer’s ability to continue designing, causing the source of the popular design, which caught the Fast Fashion company’s eye in the first place, to dry up.

Legal scholars have stated that the fashion industry runs on this form of copying, not as a negative practice damaging the market, but as a mutually beneficial cost of doing business.^{^[39]} Supposedly, the industry requires fashion piracy to keep running.^{^[40]} Under this theory, fashion cannot continue to develop new ideas if designs receive intellectual property protections because the cyclical nature of fashion design requires building on prior seasons’ styles, regardless of their creator.^{^[41]} This argument preceded overwhelming changes made by Fast Fashion in recent years and the massive rise in consumerism.^{^[42]} It also fails to consider the environmental and worker costs paid to continue this industry.^{^[43]}

There have been several federal legislative attempts by Congress to protect fashion designs under intellectual property laws.^{^[44]} None of these attempts have ever received a formal vote.^{^[45]} Most recently, the Innovative Design Protection Act was drafted with the express goal of protecting designs for three years after initial registration, not just the items that fall under the separability analysis but actual composition of a fashion design.^{^[46]} The Act would have separated foundational aspects, like a zipper, from the portions of a design that could receive protections.^{^[47]} Detractors worried that the Act would fail to protect new designers who were not yet established enough within the market to be generally recognizable.^{^[48]} This Act did not pass; lobbyists and industry members against the Act successfully argued that it would limit the industry in unnecessary ways.^{^[49]}

Prior Legislation

The IDPA would make it infringement to copy anything that is not “merely trivial” and can be identified as “substantially identical.”^{^[50]} It defined a “fashion design” as articles of apparel, all garments, bags, and other accessories, but not shoes or any part of the article that is purely design.^{^[51]} The IDPA identified “substantially identical” as “an article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.”^{^[52]} The IDPA does not stop the copying of common elements of utility.^{^[53]} The remedy to the designer who was copied would have included any damages or profits from the sales of the copied item from the time an action was filed.^{^[54]} However, the IDPA never came up for a vote.^{^[55]}

The IDPA, although dead in the water, could help alleviate a lot of the pain fashion designers currently feel when trying to compete within the fashion industry. Although many designers would incur high legal fees trying to fight major corporations over whether or not their work was “substantially identical” and if the copying was “merely trivial,” the simple ability to sue would alleviate pain. The act of copying is typically done to boost profits without having to pay for, or promote, the act of creation.^{^[56]} This suggests that the remedy of profit disgorgement and paying damages would be a fitting outcome, and hopefully deterrence, to the copier. It could also help smaller designers who would then be given the opportunity to join a class action lawsuit to help spread costs across all of those who were impacted by the action of the Fast Fashion brand. If this act does anything to stop the proliferation of Fast Fashion brands in the United States it will have created an overall benefit to society. If nothing but to show to United States citizens that the continued copying of designs is not a legal action, it could hopefully help push consumers to stop purchasing items created by Fast Fashion brands simply as dupes or knockoffs.^{^[57]} The three year timeline is most likely enough to allow a designer time to capitalize on their efforts of making the initial copy, and not enough time to stop the design from then filtering down to those who would choose not to pay the initial designer’s costs.^{^[58]}

The Innovative Design Protection Act would be a step in the right direction to end the ramifications of Fast Fashion on the fashion industry and the globe. This act would also be a further signal towards the public and companies looking to innovate that the United States will continue to be a place that promotes creative efforts while still maintaining opportunities to build upon other innovations.

Tax as a Solution

Alternatively, due to the fundamental lack of legislative support for the extension of copyright protections, other options should be explored, like the eco-tax created in France in 2025.^{^[59]} This tax specifically targets Fast Fashion brands by imposing upon them a tax of five euros per every item sold, completely banning social media and influencer advertising, adding a score near the product price on how harmful it is to the environment to create the item, and adding teeth to the bill by including a fine for violation up to one-hundred-thousand euros.^{^[60]} Any revenue created from this tax is earmarked to French fashion companies focusing on sustainability.^{^[61]} Within the US, such “sin” taxes have been used to try and adjust the behavior regarding items like cigarettes and gambling,^{^[62]} although they don’t historically create a one-to-one impact on reducing the “sinful” behavior.^{^[63]} “Sin” taxes also tend to fall more disproportionately on those of lower incomes.^{^[64]}

These potential negatives aside, the wholescale purchasing of items that harm humanity and the environment by those of any economic background provides a decent argument for implementing a similar “sin” tax to that in France in the United States. Copyright protections would provide the most encompassing and long-term solution to the problem; but a tax imposed upon these incredibly harmful goods pushing the revenue to companies within the United States that focus on sustainability and humanitarian practices has the potential to help, especially if copyright protections fail to come to fruition. Tax policy has already been suggested as a viable solution to AI copyright infringement, labor market issues, continuing discriminatory issues, and economic harms.^{^[65]} Different from a Fast Fashion tax, legal thinkers have suggested a tax that would move equity within AI corporations to the public.^{^[66]}

Conclusion

The lack of protections for fashion designs facilitates a market promulgated by the Fast Fashion industry and all its ramifications; specifically, extensive environmental consequences and harmful work environments. Implementing further legislation has failed previously, due to a lack of understanding of how things influence markets. Allowing competition to copy all creations and completely dilute the market with cheaper, mass-produced items forces smaller creators out of the market. Litigants and lawmakers should see the rise of AI usage as an opportunity to apply more stringent copyright laws to other industries, such as fashion.

About the Author

Shelby Jorgensen is a rising 3L at the University of Wisconsin Law School, working as the Case Law Coordinator for the Center for Art Law. A 2022 graduate from the University of Notre Dame with a dual degree in marketing and studio art, Shelby hopes to combine her passion for numbers and ability to see patterns to work or teach as a tax law attorney. She can be contacted for questions or comments at sjorgensen4@wisc.edu.

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Lo, supra note 9, at 181. 17 U.S.C. § 101 (defining a useful article as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘‘useful article’’.). Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405, 411 (2017). ↑
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Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.