Copyright Infringement in Fashion: Prints, Photos and Designs

“Copyright infringement” sounds like a single legal question, but fashion actually asks three separate versions of it depending on what got copied. A stolen print, a reposted photo, and a copied silhouette each get judged under a different legal test, with different evidence, different defenses, and often a completely different outcome. Treating all three as one problem is how a brand ends up filing the wrong claim, or worse, assuming it has no claim at all when it actually does.

Prints: The Substantial Similarity Test

A textile print or graphic design counts as an original artistic work the moment a designer creates it, and copying one triggers the same infringement test copyright law applies to any other creative work. Courts ask whether the accused work is substantially similar to the original, and whether the alleged copier actually had access to the original design in the first place. Access can be proven directly, through evidence the copier saw the print before making their own, or inferred where the two designs are so strikingly similar that independent creation becomes implausible. The test looks at the overall impression an ordinary observer takes away, not a checklist of individual elements, which is why two prints can share a color palette or a motif without one infringing the other, as long as the total composition reads as genuinely different work. A plaintiff who cannot prove access is not automatically finished either. Courts have long recognized that a resemblance can be so striking, so unlikely to occur by coincidence, that it substitutes for direct proof the copier ever saw the original at all.

Photos: Why Posting a Photo of Yourself Can Still Be Infringement

Fashion brands run into this specific trap constantly, and it catches people off guard because the subject of the photo often assumes ownership follows the face in the picture. It does not. Copyright in a photograph belongs to whoever took it, not whoever appears in it, which is why Versace was sued over a paparazzi photo of Jennifer Lopez that the brand reposted without the photographer’s permission. Scott Disick’s brand Talentless faced a nearly identical suit from photo agency BackGrid over an unlicensed repost used to promote the label directly, and Gigi Hadid has faced this exact claim from paparazzi photographers three separate times, a pattern common enough across the industry that photo agencies now treat a public figure’s own social feed as a routine source of infringement leads rather than an edge case. Courts weigh a fair use defense against four factors: the purpose of the use, the nature of the original work, how much of it got used, and the effect on the photograph’s market value. Commercial use, a brand posting a photo to sell a product rather than comment on it, consistently weighs against fair use, which is exactly why a caption plugging a sweater or a new collection tends to make the fair use argument weaker rather than stronger. FLJ’s own coverage of photography rights in the social media era covers this exact gap between who appears in an image and who actually owns it.

Designs: When Copyright Can’t Reach, Design Patents Sometimes Can

Garment silhouettes mostly sit outside copyright entirely, since the useful article doctrine strips protection from anything that serves a functional purpose beyond just looking a certain way. That gap is why fashion brands serious about protecting an overall design often turn to design patents instead, a completely different right governed by a completely different infringement test. Under the ordinary observer standard set in Gorham Co. v. White, an 1871 Supreme Court case about silverware handles that still governs every design patent dispute today, infringement turns on whether an ordinary buyer, paying the attention a purchaser normally gives, would be deceived into buying one design believing it was the other. That standard has real teeth in footwear and accessories specifically. Crocs has filed dozens of design patent suits against lookalike clog makers with mixed results, and Puma’s design patent on its Fenty Creeper sneaker survived a motion to dismiss in its case against Forever 21, giving Puma real leverage a pure copyright claim never could have provided for the shoe’s actual shape.

Three Tests, One Buzzword

Calling all of this “copyright infringement” flattens three genuinely different legal fights into one phrase. A copied print gets measured by substantial similarity and access. A reposted photo gets measured by ownership and the four fair use factors, regardless of who is standing in the frame. A copied silhouette usually cannot use copyright at all, and instead depends on whether a design patent exists and whether an ordinary buyer would actually be fooled. Knowing which test applies before a dispute starts is the difference between a real claim and a brand discovering, mid-lawsuit, that the right it assumed it had was never the right it actually needed.