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Note: When Imitation Isn't the Sincerest Form of Flattery: Combating Fast Fashion Design Piracy Through Enhanced Copyright Protection


Fashion is art—except in the United States. Classified as purely useful articles, fashion designs have been constrained in their ability to receive copyright protection under the current regime. Today, individual pieces of fashion designs may receive protection under the pictorial, graphic, and sculptural works category of the United States copyright code after satisfying the “separability test.” This has opened the door for fast fashion brands to run rampant, copying designs at every turn with little to no penalty. This Note argues that the United States copyright code should be amended, adopting portions of the French Intellectual Property Code, to formally recognize fashion designs as a protected work, thereby protecting them from fast fashion replication. This Note further argues that because fashion is inherently different compared to the protected works recognized by both regimes, the term length of the economic rights granted should be shortened to twenty years to recognize the cyclical nature of fashion and allow for more innovation in the space.